Court Can Modify Decree without Evidentiary Hearing. Commissioner Cannot Modify Property Agreements Under Rule 106.

Gullickson v. Gullickson, 2013 UT App 83 Utah Court of Appeals April 4, 2013

Wife intended to relocate and filed a Petition to Modify.  Husband opposed Wife’s removal of the child from Utah.  Wife’s Petition to Modify requested the Decree be modified to accelerate the sale of the marital home.  At the hearing, the Commissioner permitted the relocation and recommended modifying the Decree to allow Wife to rent out the home or, accelerate the sale of the home.  Father objected arguing that such a modification was not permitted by URCP 106 and requested an evidentiary hearing.  The Court overruled the objection and enforced commissioner’s order.  Father appeals.

The Court of Appeals found that Father was entitled an evidentiary hearing as to property and that no modification should be ordered without compelling reasons.  Further, the recommendation violated Rule 106.  Once a party demonstrates a circumstance not contemplated by the decree, the commissioner is no longer interpreting but modifying.  Further, the Court cannot modify a property award without an evidentiary hearing.  Court of Appeals vacated and remanded this issue.

As to relocation, the Court of Appeals advised that in relocation hearings, trial courts should address parent-time and transportation.  On objection, the trial court refused to hear witnesses relocation testimony. The Court of appeals affirmed on this issue and stated parties are limited by Rule 106, which limits the evidence on objection to the evidence that was presented before the Commissioner.

Husband also appealed the trial court’s refusal to hear the Order to Show Cause which commissioner had reserved ruling.  Court of Appeals found trial courts can choose to hear any matter, but is not required to if the issue has been reserved by Commissioner.

Davis Dissents as to the issue of review of objections by Judge—believes judge should have reviewed it.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/gullickson040413.pdf

Four Types of Non-Compliance-Based Attorney Fees Awards and Fault and Non-Compliance Cannot be Factors in Property Distribution

Goggin v. Goggin, 2013 UT 16, Utah Supreme Court, March 15, 2013

Husband and Wife Divorced.  Wife was awarded her all her attorney fees and receiver costs based on Husband’s actions of avoiding discovery and failing to comply with court orders.  Court did not distinguish between the fees awarded.  Wife also received a disproportionate distribution of property based on Husband’s dissipation of assets. Husband appealed.

The Supreme Court found that any fees that were related to failure to provide discovery, or fees incurred to enforce the order were appropriate.  The Supreme Court enumerated the four reasons a court can award fees for non-compliance: (1) Fees incurred enforcing an order, (2) Fees incurred under Rule 37 for the failure to comply with discovery, (3) Inherent Powers to reimburse parties for costs incurred defending bad faith actions, and (4) Inherent powers to sanction attorneys and litigants for bad behavior (i.e. Rule 11 sanctions).  However, the awards can never exceed the actual cost incurred by the innocent party. The Court Affirmed any award that was based on Husband’s bad acts, but Reverses any award for Wife’s out of pocket expenses in excess of reasonable attorney fees.

The trial court also found that Husband had dissipated marital assets, however instead of simply awarding wife her portion of the dissipated asset; the trial court awarded her the entire amount of the dissipated asset.  The Supreme Court Reversed and ordered that court equitably divide the marital estate, without considering Husband’s fault.   

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Goggin1316031513.pdf

Hold Harmless Provision in Decree = to Absolve Other Party From All Responsibility and Damage on A Debt.

Gardner v. Gardner, 2012 UT App. 374, Utah Court of Appeals, December 28, 2012

In the Original Divorce, Wife was awarded the parties marital home and was ordered to make the payments on the home and hold Husband harmless in regards to the debt.  Wife failed to make several payments.  Husband filed an Order to Show Cause and a Petition to Modify.  Husband’s Petition to Modify was denied and Court refused to hold wife in contempt.  Husband Appeals.

The trial court found that Decree’s hold harmless provision only required her to make the payments and not expect any payment from Husband.  The Court of Appeals disagreed and found that a hold harmless provision implies a much stronger obligation than to just make payments.  It also requires the paying party to protect the other party from any damage that may result from late payments. 

The trial court also found that Husband’s damages because of his lower credit score and suspension of credit because of the missed payments were extremely speculative and he could not prove any real damages. However, Husband requested attorney fees.  Attorney fees are not speculative in nature and a real number can be placed on that expense.  Further, Husband asks for an order requiring Wife to refinance the home.  No finding of damages are required to enter an order requiring Wife to refinance.  Reversed and Remanded.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/gardner520122812.pdf

Limiting Healthcare to Homeopathic Remedies Against the Other Parent’s Wishes = Sole Custody to Other Parent.

Clarke v. Clarke, 2012 UT App. 328, Utah Court of Appeals, November 23, 2012

At trial, Mother was awarded sole legal and physical custody of the parties minor children, was awarded 100% equity in the marital home, and husband was found in contempt.  Father appealed.

Father asserted that he was the primary caregiver and that the Court did not give proper weight to Mother’s conviction for custodial interference.  However, the Court of Appeals affirmed the trial court’s award of custody finding that Father’s antipathy to scientific medicines and his refusal to have the children immunized caused the court concern for the safety and health of the children.  Further, the Court made no finding as to which parent was the primary caregiver.  Parents worked opposite schedules and cared for the children while the other was at work.  Father could not show that the trial court abused its discretion in awarding Mother sole custody.

Court awarded Mother all the equity in the marital home to reimburse her for the inheritance she received and used to pay of Father’s premarital debt which Father agreed he should repay.  The Court affirmed the award and found that Mother should not lose the benefit of her inheritance simply because it was inverted into Father’s debt.

The Court found that there was adequate grounds for the finding of contempt, however, the Court reversed and remanded the calculation of attorney fees to be limited only to the fees accrued for the contempt hearing and not amounts accrued prior to contemptuous conduct.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/clarke112312.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

Contested Adoptions: Still a Race to the Courthouse and GAL Fees Can Be Awarded on Bad Faith Grounds

In Re A.W. (BWH and SH v. State), 2012 UT App. 109, March 13, 2012

BWH and SH were Foster-parents to A.W.  A.W. was removed because of allegations of sexual abuse.  A.W. was placed in respite care and adopted.  Prior to the completion of the Adoption, BWH and SH Petitioned to adopt A.W.  Their Petition failed to meet minimal procedural guidelines.  Further, DCFS supported allegations of sexual abuse against Foster-father, Foster-parents allowed their license to lapse, and Foster-father was convicted of disorderly conduct.  The trial court refused to join the cases and ultimately dismissed Foster-parent’s petition.  The Court also awarded fees to the Guardian ad Litem because the Petition was brought in bad faith and the GAL substantially prevailed. Foster-parent’s appealed.

The Court of Appeals affirmed the trial court’s dismissal of Foster-parent’s petition for adoption.  Because of the procedural failings, and the impossibility of placement with Foster-parent’s based on Father’s actions the Court found that the dismissal of Foster-parents was appropriate.  The Court of Appeals also found that because of the impossibility of prevailing on the merits the award of attorney fees to the Guardian ad Litem was appropriate.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/JV_aw041212.pdf

Being Fired is Insufficient Proof of Underemployment

Busche v. Busche, 2012 UT App 16, January 20, 2012

Parties divorced in January 2005.  Husband Petitioned to Modify the Decree because he had been fired from his employment.  At the time of trial on the modification, Husband was employed but at earning less.  The trial court found that because Husband was fired, that he was voluntarily underemployed.  The trial court also awarded Wife attorney fees.  Husband appealed.

The Court of Appeals found that evidence because a party was fired is insufficient to prove underemployment.  The Court is required to not only review the circumstances of a party’s loss of employment, but also their conduct after the end of the employment.  See U.C.A. § 78B-12-203 (7)(b) for imputation factors.  Because the trial court did not consider the imputation factors, the matter is Reversed and Remanded for further findings by the district court.  Court of Appeals noted later in the decision that in order to include income above regular employment, the income must be regular and consistent.

As to attorney fees, the Court found that the fees awarded for Wife’s substantially prevailing in an Order to Show Cause hearing was appropriate.  The trial court also awarded Wife attorney fees for the remainder of the case but reduced the amount.  However, the trial court made only cursory findings as to the reasonableness of the fees.  Court of Appeals Reversed and Remanded the award of fees and instructed the trial court make detailed findings to support the award of fees.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/busche012012.pdf

Detailed and Unchallenged Expert Testimony is Sufficient Basis for Trial Court Findings

Liston v. Liston, 2011 UT app 433, December 22, 2011

Husband appealed the Decree which found wife’s credit card accounts and Husband investment accounts to be marital property. The trial court further awarded wife a sum of money for her ½ interest in water rights associated with the marital home. Husband Appealed.

Court of Appeals affirmed the trial court’s finding that Wife’s detailed and specific explanation that the credit card expenses were marital expenses was more credible when compared to Husband’s lack of explanation of the credit card expenses.  Indeed, Husband’s testimony that he had no idea of what expenses were on the Credit Cards displayed his ignorance on the issue.

Husband had a sizeable investment account to which he added funds that he claimed were from his mother.  The combined amounts were then placed in an account held solely in Wife’s name, then the entire amount (including Wife’s investments) were transferred into an account held in Husband’s deceased mother’s name.  Upon distribution, the Court described how it determined that Husband original investment in the account along with other token investments and interest thereon was Husband’s separate property. The remainder, including the portion that allegedly came from Husband’s mother, the Court found to be marital.   The Court of Appeals affirmed the trial court based on the trial court’s detailed findings and reliance on the CPA report.

Husband argued that the water rights were resolved in the parties’ partial stipulation.  As part of the stipulation husband was awarded the marital home and water rights “appurtenant thereto.”  An unchallenged expert testified that three of the four shares were not appurtenant to the home, but could be sold separately.  Court affirmed the trial court based on the expert’s unchallenged testimony.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/liston122211.pdf

Trial Court Can: (1) Appoint Special Master and Require Professional Supervision for Exchanges; (2) Require a 3 Hour Minimum Before ROFR; and (3) Adjust Parent-Time Specific that Do Not Exceed Statutory Minimum Parent-Time

Wight v. Wight., 2011 UT App 424, Utah Court of Appeals December 15, 2011

Husband appeals the Decree of divorce on 12 different grounds.  The Court of appeals found that Husband’s appeal failed procedurally on several issues.

THIRD PARTY SUPERVISED EXCHANGES

The Court of appeals affirmed the trial court’s order for the third party supervising agency for parent-time exchanges based on “ample and compelling emotional issues between the parties,” and because the agency had been beneficial to the parties by helping them communicate, and limiting potential emotional issues occurring between the parties at the exchange.

SPECIAL MASTER FOR PARENT-TIME ISSUES

The Court further affirmed the appointment of a special master because based on the record, the parties had agreed to the appointment for the resolution of parent-time disputes. The Court found that Special Masters can be appointed under URCP 53 and are permitted to “do or perform particular acts.”  Further, because the appointment did not limit the parties ability to object to the orders of the special master, the appointment was appropriate under URCP 53.

RIGHT OF FIRST REFUSAL

The Court also affirmed the three hour minimum before the noncustodial parent could provide daycare for the minor children.  The Court of Appeals noted that the statute (§30-3-33(15)) does not give a right to provide day care, it simply states that “parental care is preferred to surrogate care.”

SPECIFIC EXCHANGE TIME

Father argued that the Court exceeded its discretion by ordering that pickup time in the summer midweek parent-time would be at 5:30 when U.C.A. §30-3-35 would allow Father to pick-up the children at 9:00 am.  The Court of Appeals affirmed the specific pick-up times were appropriate because the statute is the minimum schedule and the schedule that the Court imposed allowed for two midweeks and thus exceeded the minimum parent-time requirements and as such did not violate the statute.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/wight121511.pdf

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

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

Attorney Fees Awarded for Unpreparedness Do Not Require a Needs Analysis

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

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

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

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

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

Alimony: Fault No Longer a Factor When Considering Alimony

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

Divorce: Taking Decision Under Advisement = Sufficient Judicial Participation

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

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

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

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

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

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