Divorce: If a Decree Misclassifies a Payment, the Effective Date of the Reclassification is the Date of the Petition to Modify.

Cox v. Cox, 2012 UT App. 225, Utah Court of Appeals, August 16, 2012

In Husband and Wife’s stipulated divorce decree, husband was ordered to pay $3000 per month as a property settlement and child support.  Wife remarried.  Husband did not learn of the remarriage for two years, upon learning of the remarriage he petitioned the court to modify his decree and to properly classify the monthly payments as child support and alimony.

Because there was no consideration for the property payments, the trial court classified payments as alimony.  However, the Court terminated alimony on the day of the trial and not the date of remarriage. Husband appealed.

The Court of Appeals affirmed the trial court’s denial of retroactively modifying the alimony award to the date of remarriage. The Court found it was Husband’s burden to have the payments classification corrected.  The court analogized this re-classification procedure with having to establish cohabitation in order to end alimony.  The misclassification in the decree is effective until a party asks to correct it.  The Court of Appeals did modify the award retroactively to the date the Petition to Modify was filed.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/cox265081612.pdf

Petition to Modify Two-Part Test Must Be Analytically Bifurcated; and Child Support Can be Modified Even if Not Included in Petition to Modify

Doyle v. Doyle, 2011 UT 42 (Utah Supreme Court July 22, 2011).

Mother and Father were divorced and Husband was awarded custody. In the Decree, the Court ordered that if Mother returned to SLC area, the parties would have joint-custody. Mother moved back to SLC area, but Father moved for and obtained a setting aside of that portion of the Decree as a perspective change in custody. Mother then filed a Petition to Modify based on her relocation to SLC and Father’s maltreatment of the minor child. Father moved to bifurcate the trial and have best interests and change of circumstances heard separately. The Trial court denied the motion and the Court of Appeals affirmed. Father petition for writ of cert, which was granted. The Supreme Court found that while the trial court must keep the analysis of changed circumstances and bests interests analytically separate, it need not hold separate trials or limit a witnesses testimony to one or the other. The Court further found that child support is an inherent issue if a change of custody is requested and can be addressed by the court even if not completely pleaded in a complaint.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Doyle072211.pdf

Custody, Petition to Modify: No Bifurcated Trial for Petitions to Modify

Doyle v. Doyle, 2009 UT App. 306, (Utah Court of Appeals, October 29, 2009).

Husband and wife’s stipulation included an automatic change to custody if mother were to move back to Salt Lake City. When mother moved back, father filed and the court granted, a motion amending the decree invalidating the automatic change because it denied him notice and opportunity for a hearing before changing custody. Wife filed a petition to modify. The trial court denied Husband’s motion for a bifurcated trial on the issues of substantial change and best interests. At trial the trial court found a substantial change because mother had moved back to SLC, and that the custody order was uncertain. The trial court also found that it was in the son’s best interests to have mother as his custodian. Father appealed.

The Appellate Court affirmed the trial court and found that bifurcated trials would violate the preference for judicial and fiscal economy. Additionally, as is often the case, separate trials would have been duplicative requiring the parties to present the same evidence on two occasions. Additionally, the Court affirmed the trial court’s ultimate findings as to the best interests of the child because father failed to marshal the evidence.

Father also argued that Mother was not entitled to child support because she did not request it. The Court disagreed, and affirmed the decision of the trial court finding that child support follows the child, and that based on a trial court’s ability to enforce equity it can make awards even where none is requested.

Note: The trial court incorrectly used the new CS table when calculating CS. Because there was a CS order prior to December 31, 2007, the old table should have been used. Remanded as to this issue.

Full Decision available http://www.utcourts.gov/opinions/appopin/doyle102909.pdf