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

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

Trial Court Cannot Award Appellate Attorney Fees

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

Trial Court has Discretion to Determine the Weight of the Evidence

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

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

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

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: 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