Default Divorce Decree ≠ Adjudication of Paternity and If Set Aside Also Sets Aside Paternity Finding

Reller v. Reller, Intervenor Argenziano, 2012 UT App 323, Utah Court of Appeals, November 16, 2012

Argenziano fathered Wife’s child.  Wife divorced Husband by default decree in which Wife alleged that Husband was the father.  Nine months after the default decree was entered, Husband filed a Petition to Modify.  Wife responded, and for the first time alleged that Husband was not the father of the minor child.   

The parties stipulated to set aside the Decree in regards to the minor child and Wife moved to join Argenziano.  Argenziano intervened and moved to dismiss the order setting aside alleging that Husband had already been adjudicated as the father.  The Court denied the motion and ordered Argenziano to undergo genetic testing.  Argenziano was shown to be the, Father.  Argenziano appealed arguing that because Husband had already been adjudicated Father, the parties could not now challenge the adjudication. See U.C.A. §78B-15-607(1)(a).

The Court of Appeals affirmed the trial court decision and agreed that a default decree once set aside is not an adjudication.  They further found that because Argenziano was not a party in the Divorce , he has no standing to challenge the setting aside of the Decree because he was not a party to the action. 

Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/reller111612.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

Petitioner Has No Ongoing Duty to Notify Respondent of Divorce Action

Miles v. Miles, 2011 UT App 359, Utah Court of Appeals October 27, 2011

Wife filed a Petition for divorce in June 2008.  Husband left wife and moved to Florida.  He did not leave a forwarding address with the post office and simply turned in his leased vehicle to the dealer.  Wife tried to have Husband served and his girlfriend’s sister’s home in Florida, but service could not be completed.  Wife filed a motion for alternative service.  The Court granted the same and granted a default divorce decree in November 2008. 

Husband filed motion to vacate the decree in January 2009 and argued that Wife did know where he was and that she should have notified him of the divorce action.  The Court of Appeals found that Wife had no such duty.  Wife had used substantial efforts to attempt to locate Husband; she made attempts by searching with the postal service, she used the internet to search for any new addresses for Husband.  The only address she had for him was that of his girlfriend’s sister’s home where girlfriend’s sister received service on his behalf and even admitted to Wife’s daughter that Husband was living with girlfriend at sister’s home.  Because of these facts, service was proper and there was no further duty (or any duty at all) to make ongoing attempts to notify of the divorce action after service was complete.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/miles102711.pdf