Child Support: Social Security Benefits are Not Included in Income for Child Support Calculation

Wolfe v. Wolfe, 2009 UT App. 186 (Utah Court of Appeals Memorandum Decision July 9, 2009)

Trial court included Father's Social Security Benefits in the Child Support Calculation. The Office of Recovery Services appealed. The Court of Appeals Reversed and Remanded the case with instructions to recalculate the child support without the social security benefits.

Court Noted that U.C.A. § 78B-12-203(3)(b) also excludes Medicaid, Food Stamps, Housing Subsidies, Benefits from the Job training Partnership Act, Supplemental Security Income, Social Security Disability Insurance and General (government assistance).

Full Decision available at http://www.utcourts.gov/opinions/mds/wolfe070909.pdf

Prenuptial Agreement: Interpreted as any Other Contract

Levin v. Carlton, 2009 UT App. 170 (Utah Court of Appeals, June 25, 2009).

Trial Court found that the prenuptial agreement governed the parties' divorce. Wife appealed to the Utah Court of Appeals. She argued that the trial court's interpretation of the agreement was incorrect. The Court found that although it must look closely for abuse at the time of execution of the prenup, its means of interpreting the agreement are no different from any other contract.

Wife also appealed the trial court's narrow interpretation of Husband's earnings. Under the prenup, husband's earnings were to be community property. The prenup defined earnings as excluding income from investments. The trial court adopted the prenup' definition. The Court Affirmed.

Wife also appealed a denial of her discovery request. The trial court had found that the California law did not permit the post-separation discovery request and the prenup's had a choice of law provision choosing California law. The Court found that the prenup can even govern discovery issues during litigation and Affirmed the trial court.

Finally, Wife appealed the trial court's decision of attorney fees. The Court Affirmed the trial court both in denying her request and granting Husband's. This too was based on the prenup provision on attorney fees.

Full Decision available at http://www.utcourts.gov/opinions/appopin/levin062509.pdf

Child Support: Child Support Follows the Child

Hansen v. Hansen, 2009 UT App. 152, (Utah Court of Appeals, June 11, 2009).

Trial Court denied Father's Petition to Modify Child Support. Father appealed to the Utah Court of Appeals. Father argued that his daughter was living in a transitional home supported by Volunteers of America. Since support should follow the child, he argued that both parties should pay support to VoA. The Court found that this statute only applied to when a child moves to the other parent, a relative, or the state. In this case, the child is not in the custody of the state for two reasons: (1) Volunteers of America is not run by the state, but by volunteers and (2) Mother is still responsible for the child and has retained custody. The Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport the child to the doctor and counseling appointments, attend to her medical needs and pay her medical expenses. The Child also stays frequently in the Mother's home. The Court affirmed; finding that since custody had not changed, child support should not change.

Note: Mother asked for attorney fees. However, Mother failed to set forth a specific legal basis for the award of fees. No attorney fees awarded.

Full Decision available at http://www.utcourts.gov/opinions/mds/hansen061109.pdf

Alimony: Imputed Income Must Be Based on More Than Mere Conjecture

Hawks v. Hawks, 2009 UT App. 149, (Utah Court of Appeals, June 4, 2009).

Trial Court imputed Wife's income at minimum wage of part-time work. Husband appealed to the Utah Court of Appeals. The trial court must consider (1) the financial condition and needs of the recipient spouse, (2) the recipient's earning capacity, and (3) the ability of the payor spouse to provide support. When considering the recipient's earning capacity, the court may impute income. However, imputed income cannot be premised upon mere conjecture, but demands a careful and precise assessment requiring detailed findings. The trial court had determined Wife's need, Husband's ability to pay and based her capacity to earn on the difference between the two. Because the trial court had failed to make adequate findings their imputation of income was reversed and the Court found that there was nothing that suggested that wife was not able to work full time at minimum wage. As such she was imputed income of minimum wage on a full time basis. The Court than deducted the added amount from the alimony award.

Full Decision available at http://www.utcourts.gov/opinions/mds/hawks060409.pdf

Divorce: Failure to Supply Transcript= No Appellate Review, AND Separate Property with Appreciation Thereon Should be Awarded to its Owner

Thompson v. Thompson, UT App. 10, (Utah Court of Appeals, April 16, 2009).

Husband appealed trail court’s equitable division of premarital 401(k) and premarital portion invested in the home.

The Utah Court of Appeals first laid out the procedure for property distribution: (1) the court must categorize the asset (is it marital or separate property?); (2) if the property is separate property, the property and the appreciation is awarded to the owner unless the other party meets one of the exceptions (the exceptions are: enhancement, maintenance, or protection of asset, (b) commingling, (c) to obtain a just and equitable result); (3) if it is a marital property each spouse receives a roughly equal share. The court should detail the steps it took in making the distribution.

Home—yet again the Court was deprived of the opportunity to make a decision on this issue be because Husband failed to provide a transcript. Affirmed on this issue.

401(k)—Like other separate property, if a retirement account is separate property it should be awarded to the owner with appreciation thereon. Therefore, the Court Reversed and Remanded this issue to determine the appreciation on the separate property and ordered the trial court to award the premarital contribution with its appreciation to Husband.

Full Decision available at http://www.utcourts.gov/opinions/appopin/thompson041609.pdf

Divorce: Failure to Present Adequate Evidence on Property Results in Remand.

Child v. Child, UT App. 97, (Utah Court of Appeals, Memorandum Decision, April 9, 2009).

Procedural History: This matter was before the Court of Appeals in September of 2008 (2008 UT App 338).  At that time, the Court of Appeals described the strict evidence marshalling standard that applies to issues of fact on appeal.  The appellant must marshal all the evidence and show that even in when viewed in a light most favorable to the appellee, it is legally insufficient.  The Court of Appeals also found that a portion of the property was premarital and summarily awarded it to the Husband.

Wife appealed this issue and the Supreme Court reversed the appellate court and remanded because there was inadequate evidence to make any finding as to the ownership of the property in question.  (see Child v. Child, 2009 UT 17).

The Appellate Court specially ruled that a party [is presumed to retain] his separate property brought into the marriage, as well as any appreciation thereon.  To rebut this presumption the other party must show that it has done something to establish one of the exceptions (enhancement, maintenance, or protection of the property). See Dunn and Mortensen.

 

The Court of Appelas remanded the matter for further findings as to the ownership of the property.

Full Decision available at http://www.utcourts.gov/opinions/mds/child040909.pdf

Divorce: Trial Court’s Failure to Make Adequate Findings on Property and Attorney Fees Results in Remand.

Jensen v. Jensen, UT App. 1, (Utah Court of Appeals, January 2, 2009).

Trial Court awarded Wife half of the increase in value of Husband’s premarital business interest.  The Court also awarded Wife attorney fees.  Husband appealed.  The Utah Court of Appeals reversed and remand finding, that the trial court failed to make an express finding of ownership of the business (required by Stonhocker); second, the court had erred when it awarded wife 50% of the total business’ increase in value, since Husband only owned 50% of the business the Court could only award Wife half of his 50% share of the increase in value, instead; third, however, since the business was separate property and because wife had not made any significant specific contribution specific to the business (i.e. did not assist in running the business) that she was not entitled to any portion of the increase.

As to attorneys fees, the court failed to make proper findings regarding Wife’s need, Husband’s ability to pay, and Reasonableness of the fees, as required by Stonehocker.  As such the award of fees was also reversed and remanded.

Full Decision available at http://www.utcourts.gov/opinions/appopin/jensen010209.pdf