Transitional Alimony Can be Reviewed without a Showing of Change in Circumstances

Beal v. Beal, 2013 UT App 105 Utah Court of Appeals April 25, 2013

Parties were divorced in 2007 and wife was awarded transitional alimony and a review date was set for the issue of alimony.  At the time of review, Wife failed to produce various documents, namely a trust of which she was the beneficiary.  At the first hearing, the Court was unable to determine what the appropriate ongoing alimony amount should be, if any.

At the second hearing, Wife did not appear and the hearing was again continued.  Wife finally produced a copy of the trust, but did not produce the accounting.  At the third hearing, the trial court noted discrepancies between wife’s testimony and her financial declaration and ended the transitional alimony.

Wife appealed and argued that there was no basis to change the alimony because there was no substantial change of circumstance since the decree.  The Court of Appeals found that an award of transitional alimony is intended to be temporary, particularly when the Court sets a hearing to review the alimony award.  Therefore, the court could modify without a substantial change in circumstance and the modification was appropriate because of Wife’s failure to comply with reasonable discovery requests. Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/beal042513.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

No Motion to Compel Will Be Granted Unless Rules Are Followed

Rahofy v. Steadman, 2010 UT App 350 (Utah Court of Appeals December 9, 2010).

Steadman had sent letters to Rahofy requesting that she sign release forms for medical and employment information unrelated to her cause of action.  She refused.  The trial court granted a motion to compel forcing Rahofy to sign the releases.  Rahofy appealed.

The Court of Appeals found that the Utah Rules of Civil Procedure allow the parties to seek discovery informally a party cannot be compelled to respond to an informal discovery request.  A party may send a request for production of documents under Utah Rules of Civil Procedure Rule 34(a)(1), however if the documents are not in their possession, they cannot be forced to produce documents that they do not have.  Additionally, formal requests can be objected to, letters cannot.  In short, there was no formal request for the signed releases, and thus no opportunity to formally object to such a request.

It may be that Steadman was entitled to the documents he was seeking.  However, such an entitlement must be established by proper procedure and not by informal requests.  Additionally, Defendant did not even attempt to obtain the records through a subpoena, which is a proper method to obtain documents in the possession of a third party.  Because Defendant did not follow the rules of civil procedure in obtaining the discovery, the Order granting the Motion to Compel is Reversed and Remanded.

Full Decision available at http://www.utcourts.gov/opinions/appopin/rahofy120910.pdf