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

Contempt: Must Show Direct Harm to Appeal a Finding of Noncontempt of an Opposing Party

Summer v. Summer, 2012 UT App. 159, Utah Court of Appeals, June 1, 2012

Wife obtained a Temporary Order that required Husband to pay her health insurance. Husband failed to pay for the insurance.  The insurance cancelled her coverage. Husband was found in contempt. 

Husband and Wife agreed Husband reinstate the insurance.  Husband failed to do so and was found in contempt again, he was ordered him to serve the original 30 days for each contempt.  The parties also agreed that they would “look into filing a bankruptcy.”  Husband filed bankruptcy. Wife did not.

Husband appealed both the trial court’s failure to hold Wife in contempt for her failure to file bankruptcy.

The Court evaluated first whether a party has standing to appeal a failure of a court hold a person in contempt.  The Court determined in this case that because Wife’s failure to file bankruptcy resulted in a disproportionate property and alimony award, Husband did have standing because a finding of contempt on that issue could have decreased his alimony obligation and could have resulted in a more equitable property distribution.  However, because the agreement was only to “look into” filing bankruptcy, there was no requirement for wife to file bankruptcy. The Court of Appeals affirmed the trial court’s finding of noncotnempt.

  

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/summer060112.pdf

Custody and Visitation: Upon Divorce, Ex Stepparents Have No Standing to Petition Visitation

Strauss v. Tuschman, 2009 UT App. 215, (Utah Court of Appeals, August 6, 2009).

Stepfather developed a parental relationship with Daughter, a child from Mother’s prior relationship. Upon separation, Stepfather requested visitation with the child. Mother allowed it, and the district court granted Stepfather visitation. Visitation became increasing difficult to facilitate. The district court bifurcated the case and signed a divorce decree. Stepfather continued to attempt visitation. Mother now objected to visitation. The district court continued to enforce Father’s visitation under Gribble v. Gribble, 583 P.25 (Utah 1978).

Prior to the trial Mother filed a motion in limine arguing that Stepfather had no standing under the newly decided case of Jones v. Barlow, 154 P.3d 808 (Utah 2007). This time the district court agreed and found that Stepfather lacked standing. Stepfather appealed. The Utah Court of Appeals affirmed the trial court and found that while parties are married a non-biological father may stand in loco parentis and may have standing to petition visitation. However, upon divorce the biological parent may end the in loco parentis relationship at will. Thus eliminating Stepparent’s standing.

Unrelated note: the Court did not award attorney fees to mother because she failed to set forth a legal basis for such an award.

Full Decision available http://www.utcourts.gov/opinions/appopin/strauss080609.pdf