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

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

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

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