Child Welfare: Court Cannot Reduce a Parent's Parent-Time at Review Hearing if Parent Objects Prior to the End of the Hearing

E.D. v. State of Utah, 2013 UT App 162  Utah Court of Appeals Court June 27, 2013

Father appeared at review hear at which the court awarded custody of the parties' minor child to Mother.  Father objected at the very end of the hearing and requested an evidentiary hearing.  The Court denied the motion. Father appealed.

The Court of Appeals found that Father's objection was timely under U.C.A section 78A-6-1103 and that based on his objection he was entitled an evidentiary hearing.  However, on appeal, Father failed to demonstrate that if an evidentiary hearing had been held, that he would have obtained a different result.  Because he failed to demonstrate prejudice, the Court of Appeals found this to be harmless error and chose not to reverse the trial court.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_cb036011013.pdf 

3 Grounds for Appeal without Preservation and Contested Adoption Petitions Must be Resolved Through Trial

S.C. v. State of Utah, 2013 UT 26  Utah Supreme Court May 7, 2013

Grandmother sought to adopt her grandson.  Mother’s parental rights were terminated and Foster Parents also sought to adopt. The trial court found that under In Re: A.B., the foster parents had priority and they were permitted to adopt.  Grandmother appeals.  This case was certified directly to the Supreme Court by the Court of Appeals.

The Court first finds that while Grandmother’s Brief failed to cite where in the record she preserved her claim, that in the reply brief the preservation issue was adequately addressed. And that while A.B. was not directly addressed by Grandmother at the trial level, she did address the “best interest” standard which opens the door to that argument on appeal.

The Court found that 1) the Best Interest of the child is paramount and 2) in order to evaluate the stability and the likelihood of future disruption in adoptive placements.  In order to evaluate those factors, a full evidentiary hearing is required in contested cases like this one. Reversed and remanded.

Courts have the option of hearing the Petitions together or having separate hearings on the adoption case when privacy is a concern.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreCC1326050713.pdf

PKPA Applies in Adoption Cases and Must Preserve Grounds for Appeal at Trial Level

In Re Baby E.Z., 2011 UT 38 (Utah Supreme Court, July 19, 2011)
Mother moved to Utah while pregnant and placed the baby for adoption. Father moved to intervene in the adoption matter, but his intervention was denied. Father Appealed.
Because an adoption proceeding requires a custody determination the PKPA applies. However, Father failed to raise PKPA at the trial court level. Because PKPA is not a jurisdictional issue, he cannot raise it for the first time on appeal. Because he failed to raise PKPA at the trial level, his claim is waived.
Father also raised a due process challenge to the requirement of paternal assertion prior to a mother’s relinquishment. However, Father failed to raise this at the trial level.
In short, because Father failed to preserve his grounds for appeal, both grounds were waived and not fully reviewed by the Court. Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/supopin/InReEZ071911.pdf

Again, Fault is Not a Factor in Alimony, and Failure to Preserve = Wavier

Fairbanks v. Fairbanks, 2010 UT 31, (Utah Court of Appeals, February 11, 2010).

Husband and wife were divorced Court awarded Wife alimony and her premarital property. Husband appealed. 

Husband argued that he too had made premarital contributions and the trial court did not compensate him.  The Court of Appeals found that Husband failed to preserve this issue and refused to consider any arguments on this issue. 

Alimony.  Husband also argued that Wife should not have awarded alimony based on her fault in the breakdown of the marriage.  The Court disagreed with husband and affirmed the trial court, finding that fault is not a factor in awarding alimony (because the legislature has not defined it).  Further, the Court found that if fault was a factor, Wife had insufficient fault in this case.  Specifically (1) Wife’s refusal to engage in sexual relations after  Husband to her he felt like he had been raped was not cruel treatment; (2) because the parties mutually agreed that Wife would move, there was no desertion; and (3) Wife’s failure to give Husband financial support because she had no surplus does not qualify as neglect.

Husband argued that the trial court improperly admitted evidence.  The Court of Appeals made no ruling on these issues because Husband failed to object at the time the evidence was offered at trial, and thereby, waived any objection.

Concurrence: We should consider fault as a factor, but since we rely on precedent, we cannot consider it.

Full Decision available at http://www.utcourts.gov/opinions/mds/fairbanks021110.pdf

Divorce: Stipulations are NOT binding on the Court—Arbitration of child custody disputes is against public policy.

Bryner v. Bryner, 2009 UT App. 217, (Utah Court of Appeals, August 6, 2009).

The parties reached a stipulation. However, neither the parties nor the mediator put the agreement in writing. Later the parties did not agree to the content of the stipulation. Parties filed cross motions to enforce their respective versions of the agreement. At the hearing, the parties reached a number of agreements, including joint-custody and to arbitrate future custody issues. After the hearing, but prior to final judgment, Father obtained and ex parte civil stalking injunction against Mother. Because of the injunction, the court ruled that it “could not determine the advisability of enforcing the parties’ stipulation.” Additionally, substituting an arbitrator for the district court was against public policy. As a result, the district court awarded mother sole legal custody and joint physical custody to the parties and omitted the arbitration clause.

Father appealed. Father’s brief focused on omitting the arbitration clause, and argued that if part of the stipulation was not adopted the entire stipulation must be rejected. Father never raised this issue at the district court level. First, because Father failed to preserve the issue the Court affirmed the trial court. Second, even if Father had preserved the issue, the appeal failed on the merits. The Court found that the district court has discretion to adopt some or all of the stipulation. Stipulations are not binding on the court and can enforce portions that are fair and reasonable.

Full Decision available at http://www.utcourts.gov/opinions/mds/bryner510080609.pdf