Utah Family BLAWG

Must File Adoption and Petition to Terminate Parental Rights in Order for District Court to Take Jurisdiction, However, Adoption Need Not Be 100% Ripe at Time of Filing

2011-11-14T10:51:00.001-08:00

In re R.B.F.S., 2011 UT 46, Utah Supreme Court August 2, 2011

Father signed a relinquishment and consent to adoption at the time of his divorce in 2005. In 2007, Mother remarried and she and Stepfather filed to terminate Father's parental rights and complete Stepfather's Petition for Adoption without providing notice to Father. The Trial Court granted the adoption and termination. Father appealed. Father argued that since Stepfather did not qualify to file the adoption proceeding (because the children had not lived with him for one year), the adoption was not properly before the district court and accordingly, neither was the Petition for Termination. The Court of Appeals agreed with Father and set aside the termination and adoption. Mother and Stepfather petitioned for, and were granted cert.
The Supreme Court found that the District Court did have jurisdiction to hear the termination because Stepfather had filed the adoption with the termination proceedings. The Court found no additional requirement that Stepfather qualify perfectly for the adoption before filing to terminate Father's parental rights. In sum, while an adoption must be filed with the Petition to Terminate Parental rights in order for the district court to have jurisdiction, the Adoption Petitioner need not comply with all of U.C.A. 78B-6-135(7)(b) before filing the actions. Reversed to Court of Appeals to consider any other grounds for appeal.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreRBFS080211.pdf

Child Welfare: Completion of Service Plan Does Not Guarantee Reunification; and Award of Permanent Custody is an Appealable Order

2011-11-14T09:35:00.001-08:00

In Re: E.L.F., 2011 UT App 244 (Utah Court of Appeals July 29, 2011).
d
Mother appeals the Juvenile Court award of custody to Father. The Court of Appeals first finds that the order of permanent custody to Father is a final and appealable order. As to the merits of the appeal, the Court found that the Juvenile Court had jurisdiction to make the order and refused to disturb the Order of the Juvenile court because it had foundation for the order. The Juvenile Court found that Father believed that it was important that the children have a relationship with their mother, and Father was actively engaged in children's lives. The Juvenile Court also found that Mother had completed her service plan, however, according to treatment providers and other testimony at trial Mother had not internalized her treatment. Affirmed.
d
Full Decision Available at http://www.utcourts.gov/opinions/appopin/JV_elf072911.pdf

Petition to Modify Two-Part Test Must Be Analytically Bifurcated; and Child Support Can be Modified Even if Not Included in Petition to Modify

2011-11-14T07:08:00.001-08:00

Doyle v. Doyle, 2011 UT 42 (Utah Supreme Court July 22, 2011).

Mother and Father were divorced and Husband was awarded custody. In the Decree, the Court ordered that if Mother returned to SLC area, the parties would have joint-custody. Mother moved back to SLC area, but Father moved for and obtained a setting aside of that portion of the Decree as a perspective change in custody. Mother then filed a Petition to Modify based on her relocation to SLC and Father’s maltreatment of the minor child. Father moved to bifurcate the trial and have best interests and change of circumstances heard separately. The Trial court denied the motion and the Court of Appeals affirmed. Father petition for writ of cert, which was granted.The Supreme Court found that while the trial court must keep the analysis of changed circumstances and bests interests analytically separate, it need not hold separate trials or limit a witnesses testimony to one or the other. The Court further found that child support is an inherent issue if a change of custody is requested and can be addressed by the court even if not completely pleaded in a complaint.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Doyle072211.pdf

PKPA Applies in Adoption Cases and Must Preserve Grounds for Appeal at Trial Level

2011-11-11T10:45:00.001-08:00

In Re Baby E.Z., 2011 UT 38 (Utah Supreme Court, July 19, 2011)
Mother moved to Utah while pregnant and placed the baby for adoption. Father moved to intervene in the adoption matter, but his intervention was denied. Father Appealed.
Because an adoption proceeding requires a custody determination the PKPA applies. However, Father failed to raise PKPA at the trial court level. Because PKPA is not a jurisdictional issue, he cannot raise it for the first time on appeal. Because he failed to raise PKPA at the trial level, his claim is waived.
Father also raised a due process challenge to the requirement of paternal assertion prior to a mother’s relinquishment. However, Father failed to raise this at the trial level.
In short, because Father failed to preserve his grounds for appeal, both grounds were waived and not fully reviewed by the Court. Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/supopin/InReEZ071911.pdf

Property Not Properly Conveyed Away from the Marital Estate is Marital Property; and Fraud Tolls Statute of Limitations on Quiet Title Actions

2011-11-10T13:55:00.001-08:00

Grgich v. Grgich, 2011 UT App 214 (Utah Court of Appeals, June 30, 2011)

Husband and Wife divorced. Wife was awarded 1/2 interest in the parties farm estate where the parties had lived for the majority of the marriage. Husband appealed claiming the property was deeded to the minor children and Wife's challenge of the deed was barred by the statute of limitations. The trial court had concluded that Husband's acts of mortgaging the land without permission and over the objection of the children showed his lack of present intent to transfer when he deeded it to his children. Because he lacked the present intent to transfer, the transfer to the children was invalid. Further, the trial court found even he had the intent to transfer the property his fraud on Wife tolled the statute of limitations as to Wife because Husband himself had told Wife that it was invalid. She relied on his statement and his actions of unilaterally mortgaging the property as proof that he was the one true owner.

The Court of Appeals affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/grgich063011.pdf

Stalking Injunctions: Fear Can the the Result of Cumulative Actions

2011-11-10T07:06:00.001-08:00

Coombs v. Dietrich, 2011 UT App 136 (Utah Court of Appeals, April 28, 2011)

Coombs sought a stalking injunction against Dietrich (his ex-wife's new boyfriend) based on three incidents. In the first and second incidents, Dietrich merely called Coombs names and attempted to intimidate him. The third incident culminated in Dietrich slamming Coombs against the car and shutting his arm in the car door. The Court granted the stalking injunction. Dietrich appealed.

Dietrich argued that the first two incidents would not have caused a reasonable person to fear, and the third action alone is insufficient for the entry of a stalking injunction. The Court of appeals found that the first two incidents coupled with the third was sufficient for the entry of the stalking injunction. The independent incidents do not need to be fear inducing to warrant a Stalking injunction, but if the cumulative effect of the incidents causes fear that is sufficient. Affirmed

Full Decision available at http://www.utcourts.gov/opinions/appopin/coombs042811.pdf

No Constitutional Right to Counsel in Civil Contempt Cases

2011-11-02T10:07:00.000-07:00

Turner v. Rogers, 564 U.S. ____ (2011).

Turner had been found in contempt five times for failure to pay child support. The fifth time Turner did not pay the amount owing and served 6 months. After his release, the court issued another order to show cause and sentenced him to 12 months in jail without making a finding as to Turner's ability to pay. He appealed.

Turner argued that he should have been provided counsel at the show cause hearing because there was a chance that he would be subject to incarceration.

The Supreme Court found that due process requirements are met and punishment can be imposed if the alleged contemnor is found to have had notice of the order, ability to comply with the order and willful noncompliance with the order. No further safeguards are required, and if those safeguards are preserved the Court may impose jail time.

Full Decision available at http://scholar.google.com/scholar_case?case=8203402461706269179&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Passage of Time Itself is not Enough to Invalidate a Divorce Agreement and Post Separation Mortgage Payments Entitle Payor to More Equity

2011-09-21T11:42:00.001-07:00

Jacobsen v. Jacobsen, 2011 UT App 161 (Utah Court of Appeals, May 19, 2011).

Parties signed a “divorce agreement” in May 2001 and filed for divorce until 2005. The Trial court upheld the agreement. The trial court also awarded Husband a disproportionate portion of the equity because of his use of inheritance and separate income to retire the mortgage after separation. Wife Appealed.

The Court of Appeals found that Wife had marshaled much of the evidence, but failed to illustrate the “fatal flaw.” It is not enough to merely present all the evidence; the appellant must demonstrate why the evidence is insufficient. The Court also found that the passage of time does not invalidate the agreement.

The Court of appeals further found husband’s payments from post separation income and separate property used to retire the mortgage entitled him to a disproportionate amount of equity.

Wife appealed on several other grounds, but failed to preserve some issues and her other arguments were simply not supported by the evidence.

Full Decision available at http://www.utcourts.gov/opinions/appopin/jacobsen051911.pdf

UIFSA Grants Jurisdiction to Enforce Not to Modify

2011-07-26T08:50:00.000-07:00

Osborne v. Osborne, 2011 UT App 150 (Utah Court of Appeals, May 12, 2011)

Osbornes divorced in Arkansas. Mrs. Osborne moved to Utah and had her Decree domesticated under UFISA and filed for the entry of a QDRO and back alimony. She was granted the QDRO and back alimony. Mr. appealed arguing that the court did not have subject matter jurisdiction.

The Court of Appeals found that UIFSA does not give Utah courts the power to modify the Decree, but does allow for enforcement thereof. The filing of the QDRO and ordering of back support are enforcement issues. The case must be transferred in order for a decree to be modified. Also, the Court did not err in finding that Mr. owed the back alimony payments. (Mrs. Was to be paid alimony until she began to receive her distribution of the railroad retirement benefits).

Full Decision available at http://www.utcourts.gov/opinions/appopin/osborne051211.pdf

Actual Fear Not a Requirement for Stalking Injunction (Reasonable Person Standard Adopted).

2011-07-11T08:11:00.001-07:00

Bott v. Osburn, 2011 UT App 139 (Utah Court of Appeals, May 5, 2011)

Wife filed for and was granted a ex parte temporary stalking injunction. The bases for the stalking injunction were the two telephone conversations in which Girlfriend threatened to shoot Wife. Wife also knew that Girlfriend had purchased a gun. The Court entered the permanent stalking injunction. Girlfriend appealed arguing that Wife did not show she had fear of Girlfriend.

The Court of Appeals affirmed the trial court finding that there were sufficient grounds for the stalking injection because Girlfriend had engaged in a course of conduct that would cause a reasonable person fear (the threats of shooting wife) and Girlfriend knew or should have known that such threats would cause a reasonable person fear. The Court of appeals found no need for Wife to show actual fear, but that a reasonable person standard should be adopted for the purposes of entering a stalking injunction.

Full Decision available at http://www.utcourts.gov/opinions/appopin/bott050511.pdf

Parties Must be Permitted an Opportunity to Address the Grounds for Dismissal Before the Court May Dismiss

2011-07-11T07:12:00.000-07:00

Osburn v. Bott, 2011 UT App 138 (Utah Court of Appeals, May 5, 2011)

Girlfriend filed for, and was awarded an ex parte temporary stalking injunction against Wife. Wife had allegedly sent several texts, emails, voicemails, and had vandalized Girlfriend's car. Wife had filed for a Stalking Injunction before Girlfriend.

At the time of the hearing, the judge dismissed Girlfriend's petition stating that her claims should have been and were properly addressed in the previous hearing held before a different judge which addressed Wife's petition. Girlfriend appealed.

The Court of Appeals reversed and remanded finding that the dismissal was inappropriate without providing Girlfriend an opportunity to address the alleged grounds for dismissal. If she had been permitted to address the argument that the stalking injunction had been previously adjudicated she could have provided a transcript from the prior hearing, in which the other Judge refused to hear any evidence as to her claims because there were not before him. Because Girlfriend was not permitted an opportunity to respond to the basis for the dismissal, she was denied due process.

Full Decision available at http://www.utcourts.gov/opinions/appopin/osburn050511.pdf

Right to Counsel in Child Welfare Case is Not a Constitutional Right

2011-04-14T09:06:00.001-07:00

State in Re: J.R.G.F., R.F and R. G. v. B.A.F. and T.F. 2011 UT App 97 (Utah Court of Appeals, March 24, 2011).

The trial court terminated Mother’s and Father’s parental rights. Mother and Father appealed and claimed that they were not informed of their statutory right to counsel prior to trial. The court also denied their request for counsel mid-way through trial.

The Court of Appeals found that even if what Mother and Father claimed was true, they must show that the denial of counsel prejudiced their case. The statutory right to counsel under the child welfare act is different than a constitutional right to counsel. With a statutory right to counsel, there is no presumption of prejudice when counsel has been denied. To demonstrate prejudice the party must show a reasonable likelihood of a different outcome if the error had not been made. Mother and Father failed to meet the burden because of the substantial evidence against them, including: both parents had lengthy criminal histories; both had failed to pay child support; both failed to consistently visit the child. Conversely the adoptive placement provided a stable loving home, and the individuals were the only consistent parental figures in the child’s life.

Full Decision available at http://utcourts.gov/opinions/juv/JV_jrgf032411.pdf

Subject Matter Jurisdiction Under UIFSA is Based on Domicile

2011-04-13T20:14:00.000-07:00

Lilly v. Lilly, 2011 UT App 53 (Utah Court of Appeals, February 25, 2011).

Father physically resides in California due to his active duty service in the military. The parties were divorced in California and subsequently mother and child moved to Utah. Father filed a Petition to modify the child support order in Utah because Utah was the resident state of the child, Mother and Father. The trial court denied the Petition based on a lack of subject-matter jurisdiction because father physically lived in California. Father appealed.

The Court of Appeals found that Utah has subject matter jurisdiction because Father is domiciled in Utah. Under UIFSA, a state that enters the child support order maintains jurisdiction over child support if the child, obligor, or obligee continue to reside in that state. The Court of Appeals found that ‘reside’ under the statute refers to a person’s domicile, the place at which the person has been physically present, and where he intends to return, and which he regards as home. Because the trial court had failed to determine Father’s domicile, the Court of Appeals Reversed and Remanded the case to determine Father’s domicile to determine whether Utah has subject matter jurisdiction to modify the child support.

Full Decision available at http://utcourts.gov/opinions/appopin/lilly022511.pdf

Before a Court Can Issue a Stalking Injunction, Respondent Must Commit At Least Two Criminal Acts

2011-03-21T12:04:00.000-07:00

Allen v. Anger, 2011 UT App 19 (Utah Court of Appeals, January 21, 2011).

Allen sought and was granted a stalking injunction against Anger for her act of posting several posters throughout Allen’s neighborhood criticizing Allen’s choice to place her daughter in a teen ranch. Further, Anger had encouraged and helped the same daughter seek emancipation. The Stalking injunction was entered and Anger appealed.

The Court of Appeals found that under U.C.A. §6-5-106.5 a stalking injunction cannot be entered without a showing that the Respondent has committed at least two acts of stalking under U.C.A. § 77-3a-101. Because in this case there has only been one act that would rise to the level of stalking (the placing of the posters), there is no grounds for the stalking injunction. Reversed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/allen016012111.pdf

In Child Welfare Trials, Parties are Permitted to Present Additional Evidence After the Initial Close of Their Case.

2011-03-07T05:54:00.000-08:00

State of Utah In Re: M.G., M.G. v. State of Utah, 2011 UT App 5 (Utah Court of Appeals January 6, 2011).

At trial for termination of parental rights, the State presented its case and Father presented his defense. At the close of Father’s case, he challenged the sufficiency of the evidence to terminate his parental rights. The Juvenile Court stated that it had to alternatives (1) to dismiss the petition and require the state to refile, or (2) allow both parties the opportunity to put on additional evidence. The Juvenile court chose the second option and reopened the case to accept further evidence. At the conclusion of trial, the Juvenile Court terminated Father’s parental rights. Father appealed.

On appeal, the Court of Appeals determined that it is within the Juvenile Court’s sound discretion to allow additional evidence to enable the Juvenile Court to make an informed decision. This is based on the highly equitable nature of the Juvenile Court and the requirement to consider the best interest of the child in child welfare cases.

Note: It is the author’s belief that this decision could be used in all family law cases regarding the best interests of the child (i.e. if you lose on day one ask for an additional day to present further evidence)

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_mg010611.pdf

Student Support Contracts are Enforceable So long as they Satisfy the Normal Conditions Imposed on Post Nuptial Contracts

2011-03-04T10:19:00.000-08:00

Ashby v. Ashby, 2010 UT 7, (Utah Supreme Court, February 9, 2010).

Husband attended undergraduate studies in Utah while Wife worked. They agreed that he would continue graduate studies in St. Louis and Wife would work while he studied in an effort to achieve a future higher standard of living. At divorce, wife brought claims of unjust enrichment and breach of student support contract. The trial court dismissed these claims and wife brought a separate civil claim, which the trial court also dismissed. Wife appealed. The Court of Appeals reversed the district court’s dismissals and Husband Petitioned and The Utah Supreme Court granted Certiorari.

The Court found that the unjust enrichment claim failed under Martinez. Finding that any unjust enrichment issue should addressed with alimony. However, the Court found that the Student Support Contract claim does survive, but that she must bring the claim in the divorce action. The Court additionally finds that Alimony is not the exclusive remedy to breach of a student support contract, and that Alimony is insufficient in some cases to award the appropriate remedy, such as expectation damages. As such, the Court affirms the appellate court’s reversal of the dismissal in the civil action. The Court further instructs the trial court that prior to addressing alimony, it must asses whether there is a postnuptial contract. If so, it should grant the appropriate remedy prior to making an alimony award or dividing property.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Ashby020910.pdf

Court Can Change Award on Remand

2011-02-12T14:49:00.000-08:00

Baum v. Hayes, 2010 UT App 379 (Utah Court of Appeals December 23, 2010).

The Court of appeals previously remanded this case for lack of findings. On remand, the trial court made supplemental findings and changed the award. Husband appealed and argued that the trial court should not have changed the award, but instead should have only made findings that supported the prior award.

The Court of Appeals disagreed, and stated that the trial Court should amend the award according to the evidence and if the findings require the award to be changed it should be changed accordingly.

Husband also appealed the presentation and admittance of certain evidence. The Court of appeals did not consider this appeal for three reasons first, the trial court stated that it did not consider the evidence; second, Husband failed to preserve his grounds because he never objected to the evidence at the trial level; and third, Husband failed to marshal the evidence in regards to the evidence. Affirmed.

See full decision at http://www.utcourts.gov/opinions/mds/baum122310.pdf

Attorney Fees Awarded for Unpreparedness Do Not Require a Needs Analysis

2011-01-19T20:19:00.000-08:00

Anderson v. Anderson, 2010 UT App 392 (Utah Court of Appeals December 30, 2010).

Wife appealed several portions of the district court's order. One such appeal was taken from the Court's order that she pay Husband's attorney fees for a hearing at which she was not prepared and requested a continuance only at the time of the hearing. The basis of her appeal was that no fees should be awarded because the trial court failed to analyze Husband's need for the fees, Wife's ability to pay the fees, and the reasonableness of the fees.

The Court of Appeals found that no such analysis was necessary because the awarded attorney fees were not awarded under Utah Code Ann. 30-3-3, but were awarded under the district court's inherent powers to sanction parties for waste of judicial resources.

Wife next appealed the entry of the order without ruling on wife's objection to the order. There is no rule that requires a court to rule on an objection prior to entering an order that is at the heart of the objection. In fact, that argument has been specifically rejected by the court. Affirmed on all grounds

See full decision at http://www.utcourts.gov/opinions/mds/anderson123010.pdf

Court Always Retains Ability to Modify Alimony and Alimony Award Can Never Exceed the Recipients Needs

2011-01-19T19:56:00.000-08:00

Sellers v. Sellers, 2010 UT App 393 (Utah Court of Appeals December 30, 2010).

In the Decree of Divorce the trial court ordered that neither party was awarded alimony either at the time of the Decree or in the future. Wife appealed. Wife further appealed the finding that Husband owed no alimony. The basis of her appeal was that the trial court made insufficient findings as to Husband’s ability to earn. (Wife appealed on additional grounds, but failed to properly preserve those grounds at the trial level).

The Court of Appeals determined that the regardless of the trial court’s order, the court may always modify alimony based on statute, UCA 30-3-5(8); and no divorce decree can change the statute. As to the zero alimony award, it was shown that wife had sufficient income to meet her needs and did not qualify for alimony; the Court need not determine a party’s ability to pay if the other party’s needs are already being met. “Regardless of the ability of the payor spouse to pay more, the recipient souse’s need must constitute the maximum permissible alimony award.”

Full Decision available at http://www.utcourts.gov/opinions/appopin/sellers123010.pdf

A Party Cannot be Held in Contempt Unless the Order is Unambiguous

2011-01-19T19:02:00.000-08:00

State of Utah v. L.A., 2010 UT App 356 (Utah Court of Appeals December 16, 2010).

Mother was held in contempt for failing to comply with an instruction from her minor child’s probation officer. The parties agreed to assist their child in complying with all probations conditions including transporting the child to meetings with probation department, the juvenile court entered an order on their agreement. The minor child tested positive for marijuana and the child’s probation officer instructed Mother to bring the child to the detention center. Mother refused to take the child to detention and was found in contempt. Mother Appealed.

The Court of Appeals found that the order instructing the parties to provide transportation to meetings was not sufficiently specific to include transporting the child to detention. Because the order was ambiguous as to whether it required Mother to take the child to detention, or follow such an instruction from the probation officer, the Court of Appeals reversed the finding of contempt.

Dissent: Judge Orme would have found that the order was sufficiently clear to require Mother to comply with the probation officer’s instruction, and thus would have affirmed the Juvenile Court’s order.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_la121610.pdf

Trial Court Cannot Award Appellate Attorney Fees

2011-01-06T04:38:00.000-08:00

Anderson fka Thompson v. Thompson, 2010 UT App 359 (Utah Court of Appeals December 16, 2010).

Husband prevailed on the previous appeal, which resulted in a reversal and remand. On remand, he requested and the trial court awarded attorney fees for the appeal. Wife appealed. The Court found that the trial court does not have the authority to award appellate attorney fees and costs absent an explicit directive from the appellate court. In this case, there was no such explicit directive so that any award of appellate attorney fees was inappropriate. Reversed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/anderson121610.pdf

No Motion to Compel Will Be Granted Unless Rules Are Followed

2011-01-05T21:28:00.000-08:00

Rahofy v. Steadman, 2010 UT App 350 (Utah Court of Appeals December 9, 2010).

Steadman had sent letters to Rahofy requesting that she sign release forms for medical and employment information unrelated to her cause of action. She refused. The trial court granted a motion to compel forcing Rahofy to sign the releases. Rahofy appealed.

The Court of Appeals found that the Utah Rules of Civil Procedure allow the parties to seek discovery informally a party cannot be compelled to respond to an informal discovery request. A party may send a request for production of documents under Utah Rules of Civil Procedure Rule 34(a)(1), however if the documents are not in their possession, they cannot be forced to produce documents that they do not have. Additionally, formal requests can be objected to, letters cannot. In short, there was no formal request for the signed releases, and thus no opportunity to formally object to such a request.

It may be that Steadman was entitled to the documents he was seeking. However, such an entitlement must be established by proper procedure and not by informal requests. Additionally, Defendant did not even attempt to obtain the records through a subpoena, which is a proper method to obtain documents in the possession of a third party. Because Defendant did not follow the rules of civil procedure in obtaining the discovery, the Order granting the Motion to Compel is Reversed and Remanded.

Full Decision available at http://www.utcourts.gov/opinions/appopin/rahofy120910.pdf

DCFS Guidelines Are Neither Administrative Rules Nor Statute

2010-12-27T06:41:00.000-08:00

K.Y. v. DCFS, (Utah Court of Appeals November 26, 2010).

Juvenile Court found K.Y., a teacher, neglected the student according to DCFS Guidelines’ definition of emotional maltreatment. The teacher taped the student’s wrists to her desk with a six inch piece of scotch tape for two minutes as a method of discipline.

The Guidelines were neither promulgated as rules nor codified in statute and as such were neither rules nor statute and do not have the force of law. The Juvenile Court based its entire ruling on only the DCFS guidelines, and never considered the statutory definitions of abuse or neglect.

The Court of Appeals found that K.Y.’s actions did not meet the statutory definition of neglect. Additionally, there was insufficient evidence for any finding of abuse, and the JV court did not evaluate whether the teacher’s actions were a form of reasonable discipline.

In short, the JV Court did not use the correct analysis. Under the correct analysis, K.Y.’s actions were neither neglect nor abuse. The ruling of the JV court is Reversed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_ky112610.pdf

Subject Orders are Not Final Appealable Orders

2010-12-01T12:56:00.000-08:00

In re JMS and JRS, C.S.S. v. Stat e of Utah, (Utah Court of Appeals November 18, 2010).

Juvenile Court entered an order removing Father’s (C.S.S.) children from his home, but stayed the implementation of the order allowing Father to keep his children in his home if he complied with DCFS recommendations. Father failed to comply, the stay was lifted, and the children were removed from the home. Father filed an interlocutory appeal, which was denied. He then filed this standard appeal.

The Court of Appeals found that the removal of the stay was not a final appealable order. A final order is one that leaves no question open for further judicial action or effects a change in the permanent status of the child. Removal of children from Father’s home was what the court considered a mere fact that did not indicate finality. Dismissed for lack of jurisdiction.

Concurrence: Judge Thorne reiterated the Opinion of In re A.R., 982 P.2d 73 (Utah 1999), children should not be removed as punishment for failure to comply with court orders. He additionally addressed the Constitutional concerns that children might be removed from a parent’s home without a final order leaving the parent without means for appeal. However, Judge Thorne concluded that the interlocutory appeals system appropriately addresses this concern. However, he noted that these appeals are discretionary and not allowed as a right of the parent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_jms111810.pdf

Appellate Brief Must Provide Basis for Appeal

2010-11-04T06:48:00.000-07:00

Morford v. DCFS, 2010 UT App. 285, (Utah Court of Appeals October 15, 2010).

The trial court entered summary judgment for DCFS on the Mofords’ negligence and breach of contract claim based on DCFS’s failure to provide reunification services between the Morfords and their foster son prior to the relinquishment of parental rights and DCFS’s alleged misinformed report that the foster son no longer wanted to live with the Morfords. The Morfords appealed.

The Court of Appeals refused to evaluate the merits of the Morfords’ claims because of severe failings in their appellate brief. The brief’s table of authorities did not correspond to the brief. It was as if the submitted table was for a different brief. The brief failed to supply the text of the statute on which the Morfords were relying. It failed to cite the preservation of the issues in the trial court record. It failed to provide an adequate record to even address the Morfords’ claims. The argument section cites authority, but does not apply the authority to the facts of the Morfords’ claims. Because of the failure of the brief, the Court of Appeals affirmed the trial court’s entry of summary judgment.

Full Decision available at http://www.utcourts.gov/opinions/appopin/morford101510.pdf

Alimony Must be Based on Sufficient Findings and Alimony Cannot Exceed Needs

2010-11-04T06:16:00.000-07:00

Fish v. Fish, 2010 UT App. 292, (Utah Court of Appeals October 21, 2010).

Wife was awarded $800 per month in alimony. Husband appealed. He argued that the trial court had insufficient evidence to make findings as to the parties’ ability to earn and their needs. The Court of Appeals found that testimony alone is sufficient evidence for imputation of income, and that Husband’s enrollment in a Technical College did not preclude imputation of income. If a party already has basic job skills, he cannot rely on the schooling to avoid the imputation of income. However, the findings of the trial court did not support the level of income imputed to husband as required by U.C.A. 78B-12-203(7)(b) (2008). Without such findings, the trial court cannot impute income. Additionally, the trial court made no findings as to Husband’s ability to pay and therefore the alimony award was an abuse of discretion and reversed. The Court also found ability to earn cannot be based on monthly income alone, but must be based on the U.C.A. 78B-12-203(7)(b) factors, reversing the trial court’s finding that wife’s ability to earn directly correlates with her current income.

Lastly, simply because the parties combined needs exceed their combined incomes does not prove that the parties’ standard of living is not commensurate with the standard of living at the time of the marriage, it simply proves that the cost to sustain two households is greater than the cost to sustain one.

Full Decision available at http://www.utcourts.gov/opinions/appopin/fish102110.pdf

Stability Is Key Factor in Deciding Best Interests of Special Needs Children

2010-10-06T20:09:00.001-07:00

Grindstaff v. Grindstgaff, 2010 UT App. 261, (Utah Court of Appeals September 23, 2010).

Mother appealed the trial court’s award of custody to Father. Mother and Father had two children, one with special needs. The trial court found that the parties had been equally engaged in raising the parties’ minor children. The trial court found that while stability was important for all the children, it was critically important to the parties’ special needs child. Because Mother had planned to move to Nevada, the trial court awarded custody to Father. Mother’s claim for joint custody was likewise denied because of the critical need for stability.

Wife also appealed the trial court’s refusal to admit testimony her expert. At trial, Wife’s counsel conceded that the expert was not a custody evaluator; as such, any findings by her expert could not be used to rebut the custody evaluator’s findings.

Finally, as to Wife’s denied attorney fees that were denied at trial because Father did not have the ability to pay the attorney fees, the Court of Appeals found that while the trial court has a duty to hold a party in contempt, it also has great discretion in crafting a punishment to ensure compliance.

Affirmed on all issues.

Full Decision available at http://www.utcourts.gov/opinions/appopin/grindstaff092310.pdf

ABA's Blawg 100

2010-09-17T06:57:00.000-07:00

ABA is working on their list of the 100 best legal blogs, and they would like your advice on which blawgs they should include. Fill out the Blawg 100 Amici form and tell them you like the http://utahfamilyblawg.blogspot.com/

Thanks,

Grant

Trial Court has Discretion to Determine the Weight of the Evidence

2010-09-17T06:53:00.000-07:00

Richins v. Richins, 2010 UT App. 253, (Memorandum Decision, Utah Court of Appeals September 16, 2010).

Trial Court determined wife’s income based on a loan application The Court of Appeals determined that the trial court has discretion in assigning weight to various pieces of evidence. In this case, the trial court gave more weight to the 2004 loan application (which on cross, Wife testified that she agreed with everything in the application), than to either a 2003 loan application in which Wife listed a lower income and her handwritten unsigned, and undated document created by Wife in anticipation of litigation. The trial court has discretion to determine the weight of the evidence, and can only be overturned if it is clearly erroneous, the Court of Appeals Affirmed the trial court’s findings; particularly in light of the trial court’s additional findings that Wife had repeated lied to get what she wanted.

The Court additionally found that dividing the marital estate exactly in half meets the requirement that property distribution be equitable.

Lastly, because Husband was awarded attorney fees at trial and because he prevailed on appeal, his request for attorney fees for the appeal was granted.

Full Decision available at http://www.utcourts.gov/opinions/mds/richins091610.pdf

Only the Commingled Portion of Premarital Property is Distributed and A Negative Inference is Drawn Against a Non-Producing Party Who Should Have the Records

2010-08-26T12:43:00.000-07:00

Keiter v. Keiter, 2010 UT App. 169, (Utah Court of Appeals June 24, 2010).

In the Decree of Divorce, the trial court determined that a piece of separate real property was commingled with marital property and equitably distributed the entire piece of real property. Husband Appealed.

The piece of property was held as a portion of Husband’s defined benefit plan that he began contributing to before the marriage. During the marriage, Husband made several payments on the land. Husband failed to show the court where the money for these payments had come from. The Court found that a negative inference about missing documentation is to be drawn against the party who should have possession of the records. Because Husband failed to produce the records, Husband could not support his claim that the property was premarital and not subject to distribution.

Therefore, the Court affirmed the finding that the property was commingled. However, the Court found that the entire property was not subject to distribution and remanded the case for the trial court to distribute only the commingled portion, reserving the premarital portion to Husband.

Full Decision available at http://www.utcourts.gov/opinions/appopin/keiter062410.pdf

Remarriage Does Not Bar Retroactive Alimony

2010-08-17T16:31:00.000-07:00

Ostermiller v. Ostermiller, 2010 UT 43, (Utah Supreme Court May 28, 2010).

In the final order of the District Court, Husband was ordered to pay retroactive alimony to Wife even though she had remarried by the time the award was made. The district court also denied Wife a portion of the rental income acquired during separation, and denied Father child support during the temporary separation. Both appealed to the Utah Court of Appeals. The court of appeals affirmed the denial of the rental payments and the child support for failure to marshal. The court of appeals also reversed the award of retroactive alimony because wife was remarried when the award was made. Both parties requested certiorari to the Supreme Court

The Supreme Court Reversed the court of appeals and found that remarriage does not bar a retroactive alimony award. Further, it affirmed the court of appeals denial of wife’s claim for rental income because of her failure to marshal. Lastly, the Court Reversed and Remanded husband’s child support claims, because the hearing in which the district court ruled on his child support claim was not the type of hearing where a transcript is made nor would such a transcript be helpful to deciding the issue of child support.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Ostermiller052810.pdf

Must Do More Than Merely State Income of the Payor Spouse to be Entitled to Alimony

2010-08-17T15:58:00.000-07:00

Connell v. Connell, 2010 UT App. 136, (Utah Court of Appeals May 27, 2010).

Divorce Decree ordred Husband was ordered to pay $230 alimony and $1797 per month in child support. Alimony was to terminate when wife obtained full time work. Wife appeals the Alimony award, the award of attorney fees, and the failure of the trial court to order reimbursement of the payments made toward the marital home.

As to the termination of alimony, the Court of Appeals found a court must do more than simply evaluate the payor spouse’s income. They must also make findings as to the payor’s needs and expenditures as the trial court did in this case. The trial court additionally correctly imputed Husband at the income of a previous job, because his loss of the job was based on his voluntary failure to comply with employment requirements. The court’s ruling as to alimony is affirmed.

As to attorney fees, this matter is Reversed and Remanded to determine what fees are suit fees (incurred establish an order) and which are enforcement fees (incurred to enforce orders). Fees to establish an order are based on ability to pay, but enforcement fees are based on unnecessarily incurred fees because of another’s actions.

As to the mortgage payment, Husband filed for bankruptcy and the bankruptcy proceedings attached the home and took jurisdiction over the home. The Court affirmed the trial court’s find that it did not have jurisdiction to grant Wife’s request.

Full Decision available at http://www.utcourts.gov/opinions/appopin/connell052710.pdf

Two Month Relationship with Biological Child is Insufficient for Constitutional Protection

2010-08-09T12:57:00.000-07:00

In Re Adoption of T.B.

T.M. v. B.B. & S.B., 2010 UT 42, (Utah Supreme Court May 14, 2010).

From birth, unwed biological father, T.M. (Father) maintained a relationship with his daughter. He offered to pay expenses for the pregnancy, delivery, and had an informal agreement with Mother regarding care and custody of their daughter. Prior to Mother’s relinquishment of parental rights to her parents, Father filed a Paternity action and filed a motion to set aside the adoption decree in the adoption case. The paternity action was consolidated with the adoption action, and his motion to set aside and his petition for paternity were denied. Father appealed.

The Supreme Court found that while Father made several steps toward obtaining a right to withhold consent, it was not enough. He failed to strictly comply with the statute; and his relationship, however regular and important to the child, was insufficient for full blown constitutional protection. The Supreme Court stated that Father should have complied with strictly the statute. He had not only the 50 days after Daughter’s birth to comply, but also had the time during the pregnancy. Because he did not strictly comply, he has no right to withhold consent. Affirmed.

Dissent: Justice Nehring joined by the Chief Justice dissented finding that his relationship with Daughter was sufficient for constitutional protection. Father did all he could

Special Note: 3-2 Decision

Full Decision available at http://www.utcourts.gov/opinions/supopin/TB051410.pdf

Divorce Decree Enforceable Even When Parties Were Never Married

2010-08-03T12:15:00.000-07:00

Johnson v. Johnson, 2010 UT 28, (Utah Supreme Court May 7, 2010).

Wife filed for divorce claiming the parties were married. Husband admitted the same in his answer. A decree of divorce was entered. Later, Husband moved to set aside the decree for lack of subject matter jurisdiction because the parties were never married. The trial court denied the motion to set aside even when Wife admitted the parties had never married. The Supreme Court Affirmed the trial court’s denial of the motion to set aside, and found that the trial Court had subject matter jurisdiction over the Johnson’s relationship regardless if it was truly marital or not. It further had jurisdiction because Husband admitted that the parties were married. “Just as a court adjudicating a contract dispute has authority to determine that no contract exists without losing subject matter jurisdiction over the dispute, a court has authority to adjudicate a divorce claim even if the court later determines that no marriage ever existed.”

Full Decision available at http://www.utcourts.gov/opinions/supopin/Johnson050710.pdf

Unwed Biological Fathers Must Strictly Comply With the Statute to Be Entitled to Contest an Adoption

2010-07-29T07:37:00.000-07:00

E.G. and N.G. v. C.C.D., 2010 UT App. 114, (Utah Court of Appeals, May 6, 2010).

C.C.D. challenges the adoption of his biological daughter, which took place without his consent. The trial court found that C.C.D. did not strictly comply with Utah Code § 78B-6-121 because he failed to plan what he would do if he was deported. The Court Appeals found that when strict compliance with the statute is required, the trial court shall not require more than the statute, therefore requiring a contingency plan for deportation was in error. However, Because C.C.D. did not agree to pay child support in his affidavit he did not strictly comply with that provision of the statute. Because of this failure, the Court Affirmed the trial court’s denial. The Court also noted C.C.D. failed to properly raise and preserve the constitutional claims raised on appeal.

DISSENT: Judge Thorne opined that C.C.D. did strictly comply with the statute by agreeing to “assist Mother in taking responsibility for the unborn child, and to help mother with expenses.” Judge Thorne also expressed concerns about the current policies expressed by the statute to divest unwed biological fathers of parental rights with very little due process and strict compliance.

Full Decision available at http://www.utcourts.gov/opinions/appopin/babygirl101050610.pdf

Stipulation Will be Enforced Unless the Unfair or Unreasonable

2010-04-22T18:20:00.000-07:00

Robinson v. Robinson, 2010 UT App. 96, (Utah Court of Appeals, April 22, 2010).

Husband and wife stipulated as to property division. Husband would refinance a portion of the parties’ marital property and pay Wife from the proceeds. Husband moved to set aside the stipulation because of mistake and impossibility, as he would not be able to obtain the loan because the property was not producing adequate income. The trial court commissioner denied the motion to set aside and Husband appealed.

The Court of Appeals affirmed the trial court and found that at the time the parties signed the stipulation, Husband assumed the risk of not having enough information. His failure to obtain the missing information is not a mutual mistake. The Court also found that there was no unforeseen event to justify rescinding the contract for impossibility.

Husband also argued that the court never found that the stipulation was fair and reasonable. The Court finds that no such finding is required; a stipulation a trial court should enforce a stipulation unless the trial court finds that it is unfair or unreasonable. Husband also appealed the denial of his request for an evidentiary hearing. The Court found that there was not factual dispute and therefore no need for an evidentiary hearing.

Full Decision available at http://www.utcourts.gov/opinions/appopin/robinson042210.pdf

Common Residence + Sexual Contact + Husband-Wife Relationship= Cohabitation

2010-04-05T12:07:00.000-07:00

Myers v. Myers, 2010 UT App. 74, (Utah Court of Appeals, April 1, 2010).

Husband and Wife were divorced and Husband was ordered to pay alimony. After the divorce, Wife never had a permanent home, but often stayed with her parents. Husband alleged, and the trial court found, that wife, while in her parents home, engaged in sexual contact with a foster child living in her parents home. Husband moved to terminate alimony based on cohabitation with the foster child. The trial court found cohabitation based on a common residence and sexual contact. Wife Appealed.

The Court of Appeals reversed and remanded the case, finding that the Court failed to establish that Wife and the foster child engaged in a relationship akin to a husband-wife relationship. The Court found that Husband failed to show Wife shared expenses with the foster child, shared decision-making, shared space, or shared meals. The Court found that, Husband had shown that Wife and foster child conducted themselves as boyfriend and girlfriend and not as husband and wife.

Full Decision available at http://www.utcourts.gov/opinions/appopin/myers040110.pdf

Again, Fault is Not a Factor in Alimony, and Failure to Preserve = Wavier

2010-02-15T08:37:00.000-08:00

Fairbanks v. Fairbanks, 2010 UT 31, (Utah Court of Appeals, February 11, 2010).

Husband and wife were divorced Court awarded Wife alimony and her premarital property. Husband appealed.

Husband argued that he too had made premarital contributions and the trial court did not compensate him. The Court of Appeals found that Husband failed to preserve this issue and refused to consider any arguments on this issue.

Alimony. Husband also argued that Wife should not have awarded alimony based on her fault in the breakdown of the marriage. The Court disagreed with husband and affirmed the trial court, finding that fault is not a factor in awarding alimony (because the legislature has not defined it). Further, the Court found that if fault was a factor, Wife had insufficient fault in this case. Specifically (1) Wife’s refusal to engage in sexual relations after Husband to her he felt like he had been raped was not cruel treatment; (2) because the parties mutually agreed that Wife would move, there was no desertion; and (3) Wife’s failure to give Husband financial support because she had no surplus does not qualify as neglect.

Husband argued that the trial court improperly admitted evidence. The Court of Appeals made no ruling on these issues because Husband failed to object at the time the evidence was offered at trial, and thereby, waived any objection.

Concurrence: We should consider fault as a factor, but since we rely on precedent, we cannot consider it.

Full Decision available at http://www.utcourts.gov/opinions/mds/fairbanks021110.pdf

Student Support Contracts are Enforceable So long as they Satisfy the Normal Conditions Imposed on Post Nuptial Contracts

2010-02-09T12:11:00.001-08:00

d
Ashby v. Ashby, 2010 UT 7, (Utah Supreme Court, February 9, 2010).

Failure to Submit to Corporate Formalities Will Subject Husband and Wife to Corporate Debt.

2010-02-09T10:53:00.001-08:00

d
Olson v. Olson, UT App. 22, (Utah Court of Appeals, February 4, 2010).

When Parties divorced, they had significant business debt. Parties had so commingled the business and personal debts and assets that the business was simply and alter ego of the parties. The trial court divided the business debt between the parties and ordered Husband to pay wife $1000 per month after the sale of the home. Wife appealed those issues and many others including the valuation of the marital home, and the exclusion of her expert.

The Court of appeals declined to rule on a number of the wife’s issues because she did not adequately brief the issues; she failed to show preservation, standard of review, and failed to cite relevant authority.

The Court of Appeals affirmed all trial court findings. The parties business failed to be a corporation in all respects. As to alimony, the tying of alimony to the sale of the home was property and shows that she is living rent free and that when they sell the home she will have need. The court appropriately based the valuation of the home on Husband’s testimony as a knowledgeable owner. The trial court appropriately excluded Wife’s expert because she had not provided an expert report from him. A trial court can strike an expert’s testimony when the proponent failed to file an expert report and failed to list him on her witness list as and expert.

Full Decision available at http://www.utcourts.gov/opinions/appopin/olson020410.pdf

One Year Anniversary

2010-01-27T12:14:00.000-08:00

This blawg is now one year old and contains all the family law decisions from the Utah Appellate Court and Utah Supreme Court.

It has been a long year and we have lost some dear friends in our legal community. It would be inappropriate for me to review the last year without recognizing their passing. I am speaking in with regard to Nyal Bodily and Craig Snyder.

I hold both Nyal and Craig out as my examples and men I consider mentors. Nyal’s example exhibits that one can be of high moral character while advocating for his client. Craig’s example exhibits that old dogs can learn new tricks, and he can certainly teach a few. My hope for myself and for others in our family law community can emulate the good characteristic exhibited by Nyal and Craig. Our condolences are with their families, but our memories are good and supported by the eternal public record, both exhibit that Craig and Nyal are as good as any and better than most.

We move forward, and I will continue to supply the summaries as the cases become available and I appreciate your comments.

Thanks for reading.

Utah Criminal Blawg

2010-01-27T11:52:00.001-08:00

As a spin-off of the Utah Family Blawg, which is now a year old, I have created the Utah Criminal Blawg.

In the Utah Criminal Blawg, I do not plan summarize all the appellate court decisions regarding criminal cases, but will attempt to summarize any and all decisions narrowing or expanding current case law.

Feel free to email me with any comments or suggestions utahcriminalblawg@gmail.com.

Divorce: Separate Property Remains Separate in the Absence of Enhancement

2009-12-22T15:33:00.000-08:00

Soderborg v. Soderborg, 2009 UT App. 359, (Utah Court of Appeals, December 3, 2009).

Husband inherited two properties. When received, they were in poor shape and husband worked several years to make them profitable. After they became so, Husband spent a large amount of time managing the properties. Upon divorce, the Court awarded the properties to husband. Wife Appeals.

Wife argues that Husband’s labor spent in making the properties profitable and in managing the properties was a marital asset and as such, the marital estate is entitled to reimbursement of the work or, in the alternative, an interest in the properties. The Court of Appeals disagreed with Wife and affirmed the trial court finding that Husband inherited the properties. As an inheritance, it overcomes the presumption that it is marital property and remains separate. Wife makes no argument that she enhanced, maintained, or protected the property as such, the Court ordered it remain separate. The Court found that wife had no claim for husband’s labor and time spent on the properties.

Additionally, Wife argued that she was entitled to alimony. However, the Court again disagreed and affirmed, finding that while Wife physician may not have formerly released her to work, she provided no evidence that she had requested such a release because she of that her ability to work was not adequately shown to be impaired.

Full Decision available http://www.utcourts.gov/opinions/mds/soderborg120309.pdf

Alimony: Fault No Longer a Factor When Considering Alimony

2009-12-16T12:17:00.000-08:00

Mark v. Mark, 2009 UT App. 374, (Utah Court of Appeals December 10, 2009).

Wife earned significantly more than Husband. Husband was in school was to complete his degree in one year. The trial court awarded husband $1200 per month as rehabilitative alimony for one year, and denied his request for attorney fees. Husband appealed.

Husband argued that the court failed to make adequate findings to support the alimony award, that the alimony should be permanent (instead of rehabilitative) and that considering fault was inappropriate. The appellate court Reversed the trial court’s alimony award finding without adequate findings the Appellate Court could not determine the validity of the award. The Court further found that Husband had weak employment prospects and that it was unlikely that he could earn enough to maintain the lifestyle enjoyed during the marriage. Thus, the award of only rehabilitative alimony was an abuse of their discretion. Finally, because the policy of alimony is to provide support and not to reward or punish, adjusting any award because of fault is inappropriate. Remanded to trial court for further findings all factors, but eliminating fault as a factor

Court Affirmed the non-award of attorney fees. The Court found that the trial court must only make findings if it makes an award of attorney fees. If there is not award, there is not requirement to make findings.

DISSENT: The trial court should consider fault. The legislature has given the courts the factor of fault and failing to consider it simply because it is not defined is replacing the legislature’s judgment with our own.

Full Decision available http://www.utcourts.gov/opinions/appopin/mark121009.pdf

Interference with Parent-Time + Moving = Sufficient Grounds for a Change of Custody

2009-12-15T19:51:00.001-08:00

Hanson v. Hanson, 2009 UT App. 365, (Utah Court of Appeals, December 10, 2009).

Mother had moved to Louisiana and Father had filed a Petition to Modify. At trial, Father offered evidence that besides moving to Louisiana, Mother had also substantially interfered with Father’s visitation. The trial court awarded custody to Father. Mother appealed.

On appeal, Mother argued that increasing the distance from extended family is not sufficient grounds to change custody. The Court agreed, however affirmed the trial court finding that when moving away from family is combined with substantial interference with parent-time it is sufficient grounds to change custody.

DISSENT: The remedy for noncompliance with the parent-time order is contempt, not a change of custody. The primary caretaker factor is paramount and a custody arrangement should rarely be disturbed.

Full Decision available http://www.utcourts.gov/opinions/appopin/hanson121009.pdf

Divorce: Taking Decision Under Advisement = Sufficient Judicial Participation

2009-12-04T11:03:00.000-08:00

Brough v. Brough, 2009 UT App. 344, (Utah Court of Appeals, November 27, 2009).

At trial, the district court directed Husband and Wife to prepare proposed Findings of Fact and Decrees. Both did, and the district court took the matter under advisement. The judge adopted wife’s Findings and Decree. Husband appealed claiming that the district court judge did not adequately participate in the proceedings.

The Court of Appeals affirmed the trial court, and found that the trial court’s actions of taking the matter under advisement and asking both parties to prepare proposed orders was sufficient participation. The district court also made notes regarding its initial view of the case. The notes demonstrate that the trial court agreed initially with Wife’s position and found Husband’s position to be “ridiculous.”

Court also found the actions of the parties changed premarital property to marital property and subject to distribution. Husband argues also that the ante-nuptial agreement reserved his property as separate. However, this agreement was made with the understanding that wife was not associated with that property; conversely, during the marriage she became substantially associated to that property.

Finally, the Court that the award of attorney fees was also correct for two reasons: Wife’s financial need and Husband’s ability to pay, and because Wife had substantially prevailed on her claims at trial; and on appeal as well. The Court remanded the matter for the trial court to determine adequate costs for appeal.

Full Decision available http://www.utcourts.gov/opinions/mds/brough112709.pdf

Custody, Petition to Modify: No Bifurcated Trial for Petitions to Modify

2009-11-12T15:59:00.000-08:00

Doyle v. Doyle, 2009 UT App. 306, (Utah Court of Appeals, October 29, 2009).

Husband and wife’s stipulation included an automatic change to custody if mother were to move back to Salt Lake City. When mother moved back, father filed and the court granted, a motion amending the decree invalidating the automatic change because it denied him notice and opportunity for a hearing before changing custody. Wife filed a petition to modify. The trial court denied Husband’s motion for a bifurcated trial on the issues of substantial change and best interests. At trial the trial court found a substantial change because mother had moved back to SLC, and that the custody order was uncertain. The trial court also found that it was in the son’s best interests to have mother as his custodian. Father appealed.

The Appellate Court affirmed the trial court and found that bifurcated trials would violate the preference for judicial and fiscal economy. Additionally, as is often the case, separate trials would have been duplicative requiring the parties to present the same evidence on two occasions. Additionally, the Court affirmed the trial court’s ultimate findings as to the best interests of the child because father failed to marshal the evidence.

Father also argued that Mother was not entitled to child support because she did not request it. The Court disagreed, and affirmed the decision of the trial court finding that child support follows the child, and that based on a trial court’s ability to enforce equity it can make awards even where none is requested.

Note: The trial court incorrectly used the new CS table when calculating CS. Because there was a CS order prior to December 31, 2007, the old table should have been used. Remanded as to this issue.

Full Decision available http://www.utcourts.gov/opinions/appopin/doyle102909.pdf

Common Law Marriage: Ongoing Cohabitation Not a Requirement of Common Law Marriage

2009-11-12T14:47:00.000-08:00

Richards v. Brown, 2009 UT App. 315, (Utah Court of Appeals, October 29, 2009).

Common Law Marriage. The trial court summarily denied Richard’s petition to recognize a common law marriage because more than one year had passed since the parties cohabitated. Richards appealed. The Court found cohabitation is not an ongoing requirement. If the parties continued to assume rights, duties, and obligation, of the marriage, and continued to hold themselves out as married, the relationship continues. A party may file to have the relationship recognized anytime during the relationship, or within one year. The Court reversed and remanded this claim and instructed the trial court to hear evidence as to the termination date of the relationship.

Unjust enrichment. Richards must show that Brown benefited from payments, which he made to her, and that failure to compensate him is inequitable. The record showed that the payments were commensurate with rents, thus no damages to him and no unjust benefit to him Affirmed.

Promissory Estoppel. Richards must show that he acted prudently and that Brown knew of his reliance on the promise to share the equity. Brown refinanced the home twice without adding him to the title; this notified him that she had no plans share the equity. Richards still had a place to live at a reasonable price. Affirmed.

Protective Order. Richards argued that a Discovery Protective Order prevented him from obtaining needed evidence. However, Richards filed a Certificate of Readiness in which he acknowledged that discovery was complete. Based on that admission, there was no reason for further discovery. Affirmed.

Full Decision available http://www.utcourts.gov/opinions/appopin/richards102909.pdf

Protective Orders: Failure to Request an Evidentiary Hearing is Wavier, Stale Abuse Coupled with New Threats is Admissible

2009-10-23T09:43:00.000-07:00

Hedgcock v. Hedgcock, 2009 UT App. 304, (Utah Court of Appeals, October 22, 2009).

Wife obtained an Ex Parte Protective Order. At the hearing, the commissioner recommended that the court enter a permanent Protective Order. The Salt Lake District Court issued the permanent Protective Order on September 4, 2008. Husband objected to Commissioner’s recommendation, but before the judge could hold a hearing on the objection, Wife requested a hearing alleging that Husband had broken into her home on September 6, 2008 (2 days after the hearing, Wife had arrived to her home with her children and new boyfriend to find Husband in the home). Husband responded to the request for hearing and objected to the court considering any new information (i.e. the break-in). The court held a telephone conference, at which time the parties agreed to several things. Among them, that no evidentiary hearing would be required. The district court held a hearing on the objection and denied the motion to dismiss the Protective Order because of past abuse and current threats.

Husband appealed to the Utah Court of Appeals alleging that the district court should not have considered stale abuse (abuse that took place and was subject to a previously dismissed protective order). He also argued that the district court should have held an evidentiary hearing.

The Court affirmed, and found that a district court can consider stale abuse when coupled with current threats. The Court also found that Husband had waived any claim to an evidentiary hearing by not requesting it and by never contesting the district court’s conclusion the parties agreed not to have one.

Full Decision available http://www.utcourts.gov/opinions/appopin/hedgcock102209.pdf

Custody and Visitation: Upon Divorce, Ex Stepparents Have No Standing to Petition Visitation

2009-09-30T08:34:00.000-07:00

Strauss v. Tuschman, 2009 UT App. 215, (Utah Court of Appeals, August 6, 2009).

Stepfather developed a parental relationship with Daughter, a child from Mother’s prior relationship. Upon separation, Stepfather requested visitation with the child. Mother allowed it, and the district court granted Stepfather visitation. Visitation became increasing difficult to facilitate. The district court bifurcated the case and signed a divorce decree. Stepfather continued to attempt visitation. Mother now objected to visitation. The district court continued to enforce Father’s visitation under Gribble v. Gribble, 583 P.25 (Utah 1978).

Prior to the trial Mother filed a motion in limine arguing that Stepfather had no standing under the newly decided case of Jones v. Barlow, 154 P.3d 808 (Utah 2007). This time the district court agreed and found that Stepfather lacked standing. Stepfather appealed. The Utah Court of Appeals affirmed the trial court and found that while parties are married a non-biological father may stand in loco parentis and may have standing to petition visitation. However, upon divorce the biological parent may end the in loco parentis relationship at will. Thus eliminating Stepparent’s standing.

Unrelated note: the Court did not award attorney fees to mother because she failed to set forth a legal basis for such an award.

Full Decision available http://www.utcourts.gov/opinions/appopin/strauss080609.pdf

Divorce: Stipulations are NOT binding on the Court—Arbitration of child custody disputes is against public policy.

2009-09-29T10:07:00.000-07:00

Bryner v. Bryner, 2009 UT App. 217, (Utah Court of Appeals, August 6, 2009).

The parties reached a stipulation. However, neither the parties nor the mediator put the agreement in writing. Later the parties did not agree to the content of the stipulation. Parties filed cross motions to enforce their respective versions of the agreement. At the hearing, the parties reached a number of agreements, including joint-custody and to arbitrate future custody issues. After the hearing, but prior to final judgment, Father obtained and ex parte civil stalking injunction against Mother. Because of the injunction, the court ruled that it “could not determine the advisability of enforcing the parties’ stipulation.” Additionally, substituting an arbitrator for the district court was against public policy. As a result, the district court awarded mother sole legal custody and joint physical custody to the parties and omitted the arbitration clause.

Father appealed. Father’s brief focused on omitting the arbitration clause, and argued that if part of the stipulation was not adopted the entire stipulation must be rejected. Father never raised this issue at the district court level. First, because Father failed to preserve the issue the Court affirmed the trial court. Second, even if Father had preserved the issue, the appeal failed on the merits. The Court found that the district court has discretion to adopt some or all of the stipulation. Stipulations are not binding on the court and can enforce portions that are fair and reasonable.

Full Decision available at http://www.utcourts.gov/opinions/mds/bryner510080609.pdf

Failure to Marshal=Dismissal; Inheritance=Separate Property; Encouragement≠Enhancement; Repository≠Comingling; Forgery=Unjust Enrichment;

2009-09-24T09:40:00.000-07:00

Kimball v. Kimball, 2009 UT App. 233, (Utah Court of Appeals, August 27, 2009).

Prior to the case analysis, the Court summarized the marshaling requirement. In short, when marshaling the evidence the appellant must provide all evidence in support of the trial court’s ruling, and then must identify which evidence carries the “fatal flaw.” Failure marshal results in dismissal. When reviewing the property distribution, the Court that although husband had encouraged wife to wait for a better offer on her inherited stock (which resulted more money for wife), such encouragement was not sufficient enhancement to overcome the separate property presumption on inheritance. Similarly, placing of proceeds from the sale of stock into a marital account does not automatically change separate property into marital property. Particularly if the property is adequately traced out and removed from the joint account. Husband forged several checks drawn against the stock account and could not prove that he was not unjustly enriched (because he cashed the checks without wife’s permission, the trial court inferred that he was enriched). Finally, Husband requested payment of his attorney fees. Wife argued that he had no need because his family had paid for his attorney (in divorce, to be entitled to attorney fees, one must show need, the other’s ability to pay, and reasonableness of the fees). The trial court agreed with Wife, however it made inadequate findings. The Court of Appeals reversed and remanded this issue. Moreover, the appellate court directed that the trial court found need and ability to pay, the court need only find what award would be reasonable, not that the fees incurred are reasonable.

Full Decision available at http://www.utcourts.gov/opinions/appopin/kimball082709.pdf

Paternity: Failure to Comply Strictly with the Statute = Waiver Temporary Residence is a Qualifying Circumstance Appeals: Failure to Preserve the Iss

2009-08-31T16:50:00.000-07:00

O’Dea v. Olea, 2009 UT 46, (Utah Supreme Court, July 28, 2009).

Father appeals district court’s order dismissing his paternity claim. Mother and Father had separated before Father learned of the pregnancy. Mother told father she had miscarried. Father learned that Mother had not miscarried, but instead was preparing for adoption. Father registered as a putative father in Wyoming and Montana and contacted LDS family services (the adoption agency). He again contacted Mother; she asked him not to contact her and told him she was in Utah and that he would never see the child.

Father engaged the police in his search for Mother, and made a website to find out about the child. On the website Mother’s mother responded that the child had been born and placed for adoption.

The child was born June 15, Father filed his notice with department of Human Services on September 8, (he testified that he had attempted to send it earlier, but the third party charged with mailing it failed to mail it).

The Court affirmed the trial court finding that because Father knew or should have known that Mother was in Utah, he was required to comply with the Utah statute by registering with Human Services within 80 days. Because he did not, he waived his right to notice.

Full Decision available at http://www.utcourts.gov/opinions/supopin/ODea072809.pdf

Child Support: Social Security Benefits are Not Included in Income for Child Support Calculation

2009-07-10T06:40:00.001-07:00

Wolfe v. Wolfe, 2009 UT App. 186 (Utah Court of Appeals Memorandum Decision July 9, 2009)

Trial court included Father's Social Security Benefits in the Child Support Calculation. The Office of Recovery Services appealed. The Court of Appeals Reversed and Remanded the case with instructions to recalculate the child support without the social security benefits.

Court Noted that U.C.A. § 78B-12-203(3)(b) also excludes Medicaid, Food Stamps, Housing Subsidies, Benefits from the Job training Partnership Act, Supplemental Security Income, Social Security Disability Insurance and General (government assistance).

Full Decision available at http://www.utcourts.gov/opinions/mds/wolfe070909.pdf

Prenuptial Agreement: Interpreted as any Other Contract

2009-07-03T06:26:00.000-07:00

Levin v. Carlton, 2009 UT App. 170 (Utah Court of Appeals, June 25, 2009).

Trial Court found that the prenuptial agreement governed the parties' divorce. Wife appealed to the Utah Court of Appeals. She argued that the trial court's interpretation of the agreement was incorrect. The Court found that although it must look closely for abuse at the time of execution of the prenup, its means of interpreting the agreement are no different from any other contract.

Wife also appealed the trial court's narrow interpretation of Husband's earnings. Under the prenup, husband's earnings were to be community property. The prenup defined earnings as excluding income from investments. The trial court adopted the prenup' definition. The Court Affirmed.

Wife also appealed a denial of her discovery request. The trial court had found that the California law did not permit the post-separation discovery request and the prenup's had a choice of law provision choosing California law. The Court found that the prenup can even govern discovery issues during litigation and Affirmed the trial court.

Finally, Wife appealed the trial court's decision of attorney fees. The Court Affirmed the trial court both in denying her request and granting Husband's. This too was based on the prenup provision on attorney fees.

Full Decision available at http://www.utcourts.gov/opinions/appopin/levin062509.pdf

Child Support: Child Support Follows the Child

2009-06-16T08:41:00.000-07:00

Hansen v. Hansen, 2009 UT App. 152, (Utah Court of Appeals, June 11, 2009).

Trial Court denied Father's Petition to Modify Child Support. Father appealed to the Utah Court of Appeals. Father argued that his daughter was living in a transitional home supported by Volunteers of America. Since support should follow the child, he argued that both parties should pay support to VoA. The Court found that this statute only applied to when a child moves to the other parent, a relative, or the state. In this case, the child is not in the custody of the state for two reasons: (1) Volunteers of America is not run by the state, but by volunteers and (2) Mother is still responsible for the child and has retained custody. The Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport the child to the doctor and counseling appointments, attend to her medical needs and pay her medical expenses. The Child also stays frequently in the Mother's home. The Court affirmed; finding that since custody had not changed, child support should not change.

Note: Mother asked for attorney fees. However, Mother failed to set forth a specific legal basis for the award of fees. No attorney fees awarded.

Full Decision available at http://www.utcourts.gov/opinions/mds/hansen061109.pdf

Alimony: Imputed Income Must Be Based on More Than Mere Conjecture

2009-06-16T08:34:00.000-07:00

Hawks v. Hawks, 2009 UT App. 149, (Utah Court of Appeals, June 4, 2009).

Trial Court imputed Wife's income at minimum wage of part-time work. Husband appealed to the Utah Court of Appeals. The trial court must consider (1) the financial condition and needs of the recipient spouse, (2) the recipient's earning capacity, and (3) the ability of the payor spouse to provide support. When considering the recipient's earning capacity, the court may impute income. However, imputed income cannot be premised upon mere conjecture, but demands a careful and precise assessment requiring detailed findings. The trial court had determined Wife's need, Husband's ability to pay and based her capacity to earn on the difference between the two. Because the trial court had failed to make adequate findings their imputation of income was reversed and the Court found that there was nothing that suggested that wife was not able to work full time at minimum wage. As such she was imputed income of minimum wage on a full time basis. The Court than deducted the added amount from the alimony award.

Full Decision available at http://www.utcourts.gov/opinions/mds/hawks060409.pdf

Divorce: Failure to Supply Transcript= No Appellate Review, AND Separate Property with Appreciation Thereon Should be Awarded to its Owner

2009-05-26T16:31:00.000-07:00

Thompson v. Thompson, UT App. 10, (Utah Court of Appeals, April 16, 2009).

Husband appealed trail court’s equitable division of premarital 401(k) and premarital portion invested in the home.

The Utah Court of Appeals first laid out the procedure for property distribution: (1) the court must categorize the asset (is it marital or separate property?); (2) if the property is separate property, the property and the appreciation is awarded to the owner unless the other party meets one of the exceptions (the exceptions are: enhancement, maintenance, or protection of asset, (b) commingling, (c) to obtain a just and equitable result); (3) if it is a marital property each spouse receives a roughly equal share. The court should detail the steps it took in making the distribution.

Home—yet again the Court was deprived of the opportunity to make a decision on this issue be because Husband failed to provide a transcript. Affirmed on this issue.

401(k)—Like other separate property, if a retirement account is separate property it should be awarded to the owner with appreciation thereon. Therefore, the Court Reversed and Remanded this issue to determine the appreciation on the separate property and ordered the trial court to award the premarital contribution with its appreciation to Husband.

Full Decision available at http://www.utcourts.gov/opinions/appopin/thompson041609.pdf

Divorce: Failure to Present Adequate Evidence on Property Results in Remand.

2009-05-14T15:07:00.000-07:00

Child v. Child, UT App. 97, (Utah Court of Appeals, Memorandum Decision, April 9, 2009).

Procedural History: This matter was before the Court of Appeals in September of 2008 (2008 UT App 338). At that time, the Court of Appeals described the strict evidence marshalling standard that applies to issues of fact on appeal. The appellant must marshal all the evidence and show that even in when viewed in a light most favorable to the appellee, it is legally insufficient. The Court of Appeals also found that a portion of the property was premarital and summarily awarded it to the Husband.

Wife appealed this issue and the Supreme Court reversed the appellate court and remanded because there was inadequate evidence to make any finding as to the ownership of the property in question. (see Child v. Child, 2009 UT 17).

The Appellate Court specially ruled that a party [is presumed to retain] his separate property brought into the marriage, as well as any appreciation thereon. To rebut this presumption the other party must show that it has done something to establish one of the exceptions (enhancement, maintenance, or protection of the property). See Dunn and Mortensen.

The Court of Appelas remanded the matter for further findings as to the ownership of the property.

Full Decision available at http://www.utcourts.gov/opinions/mds/child040909.pdf

Divorce: Trial Court’s Failure to Make Adequate Findings on Property and Attorney Fees Results in Remand.

2009-05-14T14:46:00.000-07:00

Jensen v. Jensen, UT App. 1, (Utah Court of Appeals, January 2, 2009).

Trial Court awarded Wife half of the increase in value of Husband’s premarital business interest. The Court also awarded Wife attorney fees. Husband appealed. The Utah Court of Appeals reversed and remand finding, that the trial court failed to make an express finding of ownership of the business (required by Stonhocker); second, the court had erred when it awarded wife 50% of the total business’ increase in value, since Husband only owned 50% of the business the Court could only award Wife half of his 50% share of the increase in value, instead; third, however, since the business was separate property and because wife had not made any significant specific contribution specific to the business (i.e. did not assist in running the business) that she was not entitled to any portion of the increase.

As to attorneys fees, the court failed to make proper findings regarding Wife’s need, Husband’s ability to pay, and Reasonableness of the fees, as required by Stonehocker. As such the award of fees was also reversed and remanded.

Full Decision available at http://www.utcourts.gov/opinions/appopin/jensen010209.pdf

Custody: Joint-Custody Cannot Be Ordered Unless One of the Parties Submits a Parenting Plan

2009-03-24T11:02:00.000-07:00

Trubetzkoy v. Trubetzkoy, 2009 UT App. 77, ---P.3d---, (Utah Court of Appeals, March 19, 2009).

Sergei Trubeztkoy was awarded joint-legal custody of the parties’ minor children, and a larger portion of the marital estate. Leslie Smith Trubetzkoy (Wife) appealed the trial court’s decisions as to custody, parent-time, the accounting of the business, and grounds for divorce. The Court of appeals affirmed the property distribution and the grounds for divorce, but reversed and remanded the trial court decision on custody.

The Court found that before a trial court can award joint-legal custody either or both parties must submit a proposed parenting plan. Without a parenting-plan the trial court cannot award joint-custody of the children. If a parenting plan has been submitted, then the court should then evaluate the best interests of the children. Addtionally, the court found that the statutory parent-time schedule is presumed to be in the best interests of the children. The burden is on the party attempting to deviate from the statute. Mother failed to justify the deviation. While the property distribution was disproportionate it was not disproportionate enough to be an abuse of discretion. Wife’s final request was for the Court to change the grounds of divorce from irreconcilable differences to adultery. The Court denied this request because it was based solely on Wife’s preference.

Full Decision available at http://www.utcourts.gov/opinions/appopin/trubetzkoy031909.pdf

Divorce: Judicial Statements Without findings Cannot be the “Law of the Case;” and Court Cannot Disregard Admissions

2009-03-07T20:44:00.001-08:00

Kotter v. Kotter, 2009 UT App. 60, ---P.3d---, (Utah Court of Appeals, March 5, 2009).

Bart Kotter was ordered to pay Elizabeth Vienna (Kotter) alimony and $800,000 for half of the value of the parties’ business. A previous judge conducted a judge-led arbitration off-the-record in which he considered only the final award of the parties’ business. The judge awarded the business to Husband and indicated that half the value should be awarded to Wife, along with alimony. The judge ruled that based on the previous judge’s statements as to alimony and the cost of the business, to be law of the case, in spite of the lack of findings. He also dismissed Husband’s motion for summary judgment which was based on Wife’s failure to respond to Request for Admissions. Husband appealed to the Utah State Court of Appeals.

The Court Reversed and Remanded the case and found that because the previous judge did not make the requisite findings to support alimony or the business valuation. So, there was no “law of the case.” As such, the Court reversed both rulings.

The Court also found that the issues of alimony and business valuation were settled because Wife failed to respond to a Request for Admissions. Wife conceded that she had not responded; and, neither she nor her counsel ever requested that the admissions be amended. Therefore, they were deemed admitted, and the Court instructed the lower court to enter summary judgment.

The more important point is that even without the admission, Wife failed to provide her monthly accounting and provided no evidence as to her income. Without evidence on her monthly income and expenses the Court could not make any award of alimony.

Full Decision available at http://www.utcourts.gov/opinions/appopin/kotter030509.pdf

Adoption: To Challenge an Adoption, an Out-of-State Father Must Comply With State Requirements Where He and the Mother Resided

2009-02-20T09:50:00.001-08:00

H.U.F. and G.F. v. W.P.W., 2009 UT App. 10, (Utah Supreme Court, February 10, 2009).

W.P.W. the putative father of Baby Girl Stine challenged the trial Court’s findings that he failed to comply with the Utah requirements to challenge the adoption of B.G.S. W.P.W. appealed on added that the trial court violated his equal protection and due process rights. This matter was certified to the Supreme Court bypassing review by the Utah Court of Appeals.

The Supreme Court affirmed the trial court. First, the Court found that W.P.W. failed to preserve his Constitutional claims (due process and equal protection) by failing to argue those claims to the trial court. Second, Father argued that he established his right to contest the adoption because he had no notice of the mother’s move to Utah and because he complied with the Arizona law; where he and mother resided prior to the birth of B.G.S. However, the Supreme Court found that in order to challenge the adoption, Arizona law required W.P.W. to file a Paternity action within 30 days of receiving notice of a possible adoption. W.P.W. failed to file for Paternity within the 30 days; therefore he did not comply with the most stringent requirements. Because of his failure, he could not contest the adoption. Additionally, he failed to comply with the Utah law because he had reason to believe that the mother was residing in Utah.

Full Decision available at http://www.utcourts.gov/opinions/supopin/HUF021009.pdf

Income to Which a Payor Spouse Would Receive But For His Bad Acts May Be Imputed To Him

2009-02-18T09:43:00.000-08:00

Young v. Young, ---P.3d---, 2009 UT App. 3, (Utah Court of Appeals, January 2, 2009).

Darrel Edward Young (Husband) was incarcerated at the time he became eligible for social security benefits. Because of Husband’s incarceration for a felony conviction he was not permitted to receive his benefits. However, Willa Mae Young (Wife), Darrell’s ex-wife filed for increase in spousal support in Utah’s First District Court. Wife claimed that husband’s recent eligibility for benefits was a substantial change in circumstances and that the benefit amount that he would receive should be calculated as income. The trial court agreed and changed the spousal support from $50 to $600, based on the eligibility. Husband appealed to the Utah Court of Appeals.

The Appellate Court affirmed the trial court's opinion. The Court found that the receipt of retirement benefits or social security can constitute a change in circumstances sufficient for a modification. Additionally, but for husband’s bad acts leading to his incarceration, he would receive the Social Security benefit. Lastly, based on the Husband’s imputed income and now the new income that he would be receiving from Social Security, his income is now 70% of the parties’ gross income and as such he was ordered to pay 70% of the combined attorney fees.

Full Decision available at http://www.utcourts.gov/opinions/appopin/young010209.pdf

Divorce: Failure to Supply an Adequate Record = No Appellate Review.

2009-02-04T15:32:00.000-08:00

Anderson v. Allred fka Anderson, 2009 UT App. 5, (Utah Court of Appeals, January 2, 2009).

Elizabeth Allred fka Anderson appealed the trial court’s award of custody and child support. However, Allred provided only her recollection of the trial court proceedings. She argued that under Utah Rules of Appellate Procedure, rule 11(g) allowed her to proceed on recollection because she could not afford to obtain a transcript of the trial. The Court outlined the proper process for proceeding under 11(g). The appellant must then serve the prepared statement of recollection on the opposing party. The other party is permitted to object to any offending portions. Such objections are settled by the trial court prior to appellate review. The Court found that Allred failed to proceed properly and that the Court was unable to rule on the case based on her unilateral statements.

Full Decision available at http://www.utcourts.gov/opinions/mds/allred010209.pdf

Juvenile Court, Termination of Parental Rights: Relinquishment is Irrevocable and Failure to Supply an Adequate Record = No Appellate Review.

2009-02-04T15:25:00.000-08:00

Re: D.A., J.A. v. State of Utah, 2009 UT App. 4, (Utah Court of Appeals, Memorandum Decision, January 2, 2009).

J.A. the father of D.A. relinquished his rights. After the relinquishment, he appealed the termination arguing that the relinquishment was induced by undue influence of his counsel and that his counsel was ineffective. The Court outlined that when a parent relinquishes their parental rights, that relinquishment is irrevocable. Upon review of the record, the Court found that the father certified that he understood the relinquishment and voluntarily signed it. As to the claim that his counsel was ineffective, he provided no record from the trial court that supported his allegation. As such, the Court could not consider this claim.

Full Decision available at http://www.utcourts.gov/opinions/mds/JV_da010209.pdf

Court May Terminate Alimony Retroactively Based on Cohabitation

2009-02-04T15:20:00.000-08:00

Black v. Black, 199 P.3d 371, 2008 UT App. 465, (Utah Court of Appeals, December 18, 2008).

Kim S. Black (Wife) and Jon Cornell Black (Husband) were married in 1980 and divorced in 1989. In June of 2001, Husband filed his first Petition to Modify the Decree to terminate alimony. Husband served interrogatories on Wife. One of the questions listed, asked Wife to list any individuals residing in her home. She failed to list her cohabitant Mr. Tomlin. Thereafter, Wife attempted to conceal the cohabitation. In 2005, Husband learned of the cohabitation and amended his petition to include it as grounds for termination of alimony. The trial court terminated alimony retroactively to the date of the original petition (relying on UCA § 78B-12-112). Wife appealed.

The Appellate court affirmed the trial court. However, the Court found that while the reliance on UCA § 78B-12-112 was misplaced in this case and should have instead used UCA § 30-3-5(10). UCA § 30-3-35(10) requires that alimony be terminated immediately upon establishment of cohabitation. However, the exact moment of cohabitation is difficult to determine. The statute is also silent as to retroactivity. This silence allows the trial court to decide the appropriate reach of the termination order based on the facts in this case. Based on Wife’s egregious attempts to conceal her cohabitation, the award of retroactive termination was well within the trial court’s discretion and is left undisturbed upon appellate review.

Full Decision available at http://www.utcourts.gov/opinions/appopin/black121808.pdf

Divorce: Give the Court Sufficient Evidence. Otherwise, Your Award Could Be Overturned.

2009-01-27T16:07:00.002-08:00

Leppert v. Leppert ---P.3d ---, 2009 UT App. 10, (Utah Court of Appeals, January 16, 2009).

The parties were awarded a bifurcated divorce in 2004. A temporary support order was in place from 2004 until 2006 when husband requested that the court modify the temporary order, which resulted in trial. The parties appealed on several grounds.

Wife appealed the trial court findings as to imputed income, alimony, division of property, and division of debt. Husband appealed the trial court's decision to separate the debts as to the date of separation instead of the date of divorce.

Imputation of Income: The Court relied on the trial court's extensive findings as to wife's employability and estimated hourly rate. Because of the findings, the Court chose not to disturb the trial court's order as to imputation of income.

As to alimony, division of personal property, royalty payments, and division of debt, the Court found that the trial court failed to make adequate findings. Because of the lack of findings, the Appellate Court reversed the awards and remanded the issues for further findings.

Attorney fees: The Court remanded the award and noted that courts must base and award of attorney fees on the need of the moving party, the ability of the other to pay, and the reasonableness of the requested amount. The Court also remanded the issue of attorney fees because of the lack of findings of the trial court.

Full Decision available at http://www.utcourts.gov/opinions/appopin/leppert011509.pdf

Utah Family BLAWG

2009-01-27T16:07:00.001-08:00

Purpose of the Blawg--With this blog I hope to summarize each family law related opinion that is handed down from the Utah Supreme Court and Utah Court of Appeals. Here you may also find commentary of news in family law. Feel free to criticize and/or disagree with the Courts' recent decisions, or my editorials etc... I hope also to correctly tag each entry for easy searching. The tags will include: property division, child support, parent time, spousal support, and others. If you think a tag should be added to an article, let me know. That's it-- enjoy and give me feedback.