Retirement Can be Valued at Time of Separation

Donnelly v. Donnelly, 2013 UT App 84 Utah Court of Appeals April 4, 2013

In a temporary order the trial court ordered Father pay child support, alimony, and the children’s medical expenses.  Mother relocated and Father bore the costs of visiting the children.

At trial, the court entered a decree awarding lower child support and alimony amounts, but did not make the amounts retroactive.  After the trial, Mother moved to divide retirement.  The court divided the retirement with value at the time of separation.  The Court also denied Father’s motion for credit towards his arrearage for the expenses he incurred to visit the children.   Father appeals the alimony award and expenses incurred for parent-time.  Mother appeals the valuation date of the retirement.

As to alimony, Father failed to preserve the pretrial order of alimony.  Father made several arguments about Wife’s diminished need while living with family and her income from gifts from family.  The Court of Appeals found that the trial court took note of gifts when making the alimony award and the award was not an abuse of discretion.

As to reimbursement of transportation costs for Father’s parent-time, the Court of Appeals found no statutory authority for the requested reimbursement and it was not an abuse of discretion to deny the reimbursement because Father failed to raise the issue at trial and made no motion to reopen evidence to address that issue.

As to valuation of the retirement, the Court found that generally retirements are valued at the time of the decree, however, when significant time (in this case 5 years) passes between the separation and Decree, it is not an abuse of discretion to value it at the time of separation.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/donnelly040413.pdf

Court Can Modify Decree without Evidentiary Hearing. Commissioner Cannot Modify Property Agreements Under Rule 106.

Gullickson v. Gullickson, 2013 UT App 83 Utah Court of Appeals April 4, 2013

Wife intended to relocate and filed a Petition to Modify.  Husband opposed Wife’s removal of the child from Utah.  Wife’s Petition to Modify requested the Decree be modified to accelerate the sale of the marital home.  At the hearing, the Commissioner permitted the relocation and recommended modifying the Decree to allow Wife to rent out the home or, accelerate the sale of the home.  Father objected arguing that such a modification was not permitted by URCP 106 and requested an evidentiary hearing.  The Court overruled the objection and enforced commissioner’s order.  Father appeals.

The Court of Appeals found that Father was entitled an evidentiary hearing as to property and that no modification should be ordered without compelling reasons.  Further, the recommendation violated Rule 106.  Once a party demonstrates a circumstance not contemplated by the decree, the commissioner is no longer interpreting but modifying.  Further, the Court cannot modify a property award without an evidentiary hearing.  Court of Appeals vacated and remanded this issue.

As to relocation, the Court of Appeals advised that in relocation hearings, trial courts should address parent-time and transportation.  On objection, the trial court refused to hear witnesses relocation testimony. The Court of appeals affirmed on this issue and stated parties are limited by Rule 106, which limits the evidence on objection to the evidence that was presented before the Commissioner.

Husband also appealed the trial court’s refusal to hear the Order to Show Cause which commissioner had reserved ruling.  Court of Appeals found trial courts can choose to hear any matter, but is not required to if the issue has been reserved by Commissioner.

Davis Dissents as to the issue of review of objections by Judge—believes judge should have reviewed it.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/gullickson040413.pdf

Relocation Clauses in Decrees that Change Custody are Unenforceable

Elison v. Elison, 2011 UT App 272, Utah Court of Appeals August 18, 2011

Father and Mother were divorced in November 2004.  The stipulated Decree of Divorce included a provision that transferred custody to Father if Mother relocated outside of Utah.  Mother moved and the District Court enforced the decree and the custody transferring provision.  Mother Appealed.

The Court of Appeals found that enforcement of status quo and best interests is the intent of Rule 106 rather than enforcement of the decree.  Rule 106 provides that the Decree that is to be modified stays in effect until the modification is complete.  The court may only change custody or parent-time to address and immediate and irreparable harm.

The Court read this rule to mean that during a modification action, the children should remain with the same primary custodian, unless remaining would threaten immediate and irreparable harm.  Reversed and Remanded

Full opinion available at: http://www.utcourts.gov/opinions/appopin/taylor081811.pdf