Child Welfare: Court Cannot Reduce a Parent's Parent-Time at Review Hearing if Parent Objects Prior to the End of the Hearing

E.D. v. State of Utah, 2013 UT App 162  Utah Court of Appeals Court June 27, 2013

Father appeared at review hear at which the court awarded custody of the parties' minor child to Mother.  Father objected at the very end of the hearing and requested an evidentiary hearing.  The Court denied the motion. Father appealed.

The Court of Appeals found that Father's objection was timely under U.C.A section 78A-6-1103 and that based on his objection he was entitled an evidentiary hearing.  However, on appeal, Father failed to demonstrate that if an evidentiary hearing had been held, that he would have obtained a different result.  Because he failed to demonstrate prejudice, the Court of Appeals found this to be harmless error and chose not to reverse the trial court.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_cb036011013.pdf 

3 Grounds for Appeal without Preservation and Contested Adoption Petitions Must be Resolved Through Trial

S.C. v. State of Utah, 2013 UT 26  Utah Supreme Court May 7, 2013

Grandmother sought to adopt her grandson.  Mother’s parental rights were terminated and Foster Parents also sought to adopt. The trial court found that under In Re: A.B., the foster parents had priority and they were permitted to adopt.  Grandmother appeals.  This case was certified directly to the Supreme Court by the Court of Appeals.

The Court first finds that while Grandmother’s Brief failed to cite where in the record she preserved her claim, that in the reply brief the preservation issue was adequately addressed. And that while A.B. was not directly addressed by Grandmother at the trial level, she did address the “best interest” standard which opens the door to that argument on appeal.

The Court found that 1) the Best Interest of the child is paramount and 2) in order to evaluate the stability and the likelihood of future disruption in adoptive placements.  In order to evaluate those factors, a full evidentiary hearing is required in contested cases like this one. Reversed and remanded.

Courts have the option of hearing the Petitions together or having separate hearings on the adoption case when privacy is a concern.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreCC1326050713.pdf

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

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

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

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

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

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

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

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

Appellate Procedure: Parties Cannot Stipulate Around Mootness

In Re L.O. (Navajo Nation v. State), 2012 UT 23, April 13, 2012

L.O. was a minor child and member of the Navajo Nation.  DCFS removed L.O. from the child’s parents and placed with a foster family.  L.O.’s parents relinquished their parental rights, and a Petition for Adoption was filed.  The Navajo Nation objected to the adoption and moved to transfer jurisdiction to the Nation.  The Juvenile Court denied the motion because the Nation had waited too long, and allowed the foster parents to adopt.  The Nation Appealed.

Before the Appeal could be heard, the Nation consented to the adoption.  However, DCFS and the Nation agreed that the issues would not be mooted and that the appeal could go forward because of the important public policy grounds.

The Court of Appeals dismissed the case because the issues were moot.  The Nation petitioned cert which resulted in this opinion.  The Supreme Court affirmed the Court of Appeals and found that the parties cannot stipulate around mootness.  In short, if the issue is dead, the parties cannot resurrect the issue by agreeing that it is alive.  This case also failed to qualify for moot-review because that is likely to evade review because of the short duration of the claim at issue.

Full opinion available at:  http://www.utcourts.gov/opinions/supopin/AdoptLO1223041312.pdf

Military Retirement Divided Identically to Corporate Retirement

Johnson v. Johnson, 2012 UT App 22, January 26, 2012

Johnson and Zoric were married for ten years.  At the time of the divorce (1984), Johnson was and E-5 in the Air Force.  In 1999, Johnson retired and began receiving his pension and Zoric filed a QDRO to divide the pension.  The Trial court awarded Zoric her portion based on Johnson’s E-7 level, which was his pay level at the time of retirement.  The trial court also ordered that Zoric’s portion be awarded prior to all other deductions giving her an even greater amount of the pension. Johnson appealed.  Johnson also argued that Zoric’s QDRO was filed too long after the decree and violated the statute of limitations.

The Court of Appeals in a divided (2-1) decision affirmed the trial court’s award at the E-7 pay grade.  The Court of Appeals found that such an award a direct application of the Woodward formula. See page 433 of Woodward. Trial court divided the number of years in service during the marriage (10) divided by the total number of years to accrue the benefit (24) and awarded Zoric 20.8% of the retirement.

The Court of Appeals reversed and remanded with instructions to recalculate Zoric’s potion after the deduction of taxes.  The trial court was instructed that it must only divide disposable retirement.

As to the issue of the statute of limitations (SOL), the Court of Appeals affirmed finding that the SOL does not begin to run until be the payment is due.  Because QDRO was filed within SOL it was enforceable.

Davis Dissent: Would divide pension and award only a portion of E-5 to Zoric.  Also believes that the appellate court should review the matter under a matter of law standard and not abuse of discretion standard.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/johnson705012612.pdf

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

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

Court Can Change Award on Remand

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

Subject Orders are Not Final Appealable Orders

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

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

Remarriage Does Not Bar Retroactive Alimony

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

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

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

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

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 Supply an Adequate Record = No Appellate Review.

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.

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