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

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