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

Common Law Marriage: Ongoing Cohabitation Not a Requirement of Common Law Marriage

Richards v. Brown, 2009 UT App. 315, (Utah Court of Appeals, October 29, 2009).

Common Law Marriage. The trial court summarily denied Richard’s petition to recognize a common law marriage because more than one year had passed since the parties cohabitated. Richards appealed. The Court found cohabitation is not an ongoing requirement. If the parties continued to assume rights, duties, and obligation, of the marriage, and continued to hold themselves out as married, the relationship continues. A party may file to have the relationship recognized anytime during the relationship, or within one year. The Court reversed and remanded this claim and instructed the trial court to hear evidence as to the termination date of the relationship.

Unjust enrichment. Richards must show that Brown benefited from payments, which he made to her, and that failure to compensate him is inequitable. The record showed that the payments were commensurate with rents, thus no damages to him and no unjust benefit to him Affirmed.

Promissory Estoppel. Richards must show that he acted prudently and that Brown knew of his reliance on the promise to share the equity. Brown refinanced the home twice without adding him to the title; this notified him that she had no plans share the equity. Richards still had a place to live at a reasonable price. Affirmed.

Protective Order. Richards argued that a Discovery Protective Order prevented him from obtaining needed evidence. However, Richards filed a Certificate of Readiness in which he acknowledged that discovery was complete. Based on that admission, there was no reason for further discovery. Affirmed.

Full Decision available http://www.utcourts.gov/opinions/appopin/richards102909.pdf

Protective Orders: Failure to Request an Evidentiary Hearing is Wavier, Stale Abuse Coupled with New Threats is Admissible

Hedgcock v. Hedgcock, 2009 UT App. 304, (Utah Court of Appeals, October 22, 2009).

Wife obtained an Ex Parte Protective Order. At the hearing, the commissioner recommended that the court enter a permanent Protective Order. The Salt Lake District Court issued the permanent Protective Order on September 4, 2008. Husband objected to Commissioner’s recommendation, but before the judge could hold a hearing on the objection, Wife requested a hearing alleging that Husband had broken into her home on September 6, 2008 (2 days after the hearing, Wife had arrived to her home with her children and new boyfriend to find Husband in the home). Husband responded to the request for hearing and objected to the court considering any new information (i.e. the break-in). The court held a telephone conference, at which time the parties agreed to several things. Among them, that no evidentiary hearing would be required. The district court held a hearing on the objection and denied the motion to dismiss the Protective Order because of past abuse and current threats.

Husband appealed to the Utah Court of Appeals alleging that the district court should not have considered stale abuse (abuse that took place and was subject to a previously dismissed protective order). He also argued that the district court should have held an evidentiary hearing.

The Court affirmed, and found that a district court can consider stale abuse when coupled with current threats. The Court also found that Husband had waived any claim to an evidentiary hearing by not requesting it and by never contesting the district court’s conclusion the parties agreed not to have one.

Full Decision available http://www.utcourts.gov/opinions/appopin/hedgcock102209.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

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

Failure to Marshal=Dismissal; Inheritance=Separate Property; Encouragement≠Enhancement; Repository≠Comingling; Forgery=Unjust Enrichment;

Kimball v. Kimball, 2009 UT App. 233, (Utah Court of Appeals, August 27, 2009).

Prior to the case analysis, the Court summarized the marshaling requirement. In short, when marshaling the evidence the appellant must provide all evidence in support of the trial court’s ruling, and then must identify which evidence carries the “fatal flaw.” Failure marshal results in dismissal. When reviewing the property distribution, the Court that although husband had encouraged wife to wait for a better offer on her inherited stock (which resulted more money for wife), such encouragement was not sufficient enhancement to overcome the separate property presumption on inheritance. Similarly, placing of proceeds from the sale of stock into a marital account does not automatically change separate property into marital property. Particularly if the property is adequately traced out and removed from the joint account. Husband forged several checks drawn against the stock account and could not prove that he was not unjustly enriched (because he cashed the checks without wife’s permission, the trial court inferred that he was enriched). Finally, Husband requested payment of his attorney fees. Wife argued that he had no need because his family had paid for his attorney (in divorce, to be entitled to attorney fees, one must show need, the other’s ability to pay, and reasonableness of the fees). The trial court agreed with Wife, however it made inadequate findings. The Court of Appeals reversed and remanded this issue. Moreover, the appellate court directed that the trial court found need and ability to pay, the court need only find what award would be reasonable, not that the fees incurred are reasonable.

Full Decision available at http://www.utcourts.gov/opinions/appopin/kimball082709.pdf

Paternity: Failure to Comply Strictly with the Statute = Waiver Temporary Residence is a Qualifying Circumstance Appeals: Failure to Preserve the Iss

O’Dea v. Olea, 2009 UT 46, (Utah Supreme Court, July 28, 2009).

Father appeals district court’s order dismissing his paternity claim. Mother and Father had separated before Father learned of the pregnancy. Mother told father she had miscarried. Father learned that Mother had not miscarried, but instead was preparing for adoption. Father registered as a putative father in Wyoming and Montana and contacted LDS family services (the adoption agency). He again contacted Mother; she asked him not to contact her and told him she was in Utah and that he would never see the child.

Father engaged the police in his search for Mother, and made a website to find out about the child. On the website Mother’s mother responded that the child had been born and placed for adoption.

The child was born June 15, Father filed his notice with department of Human Services on September 8, (he testified that he had attempted to send it earlier, but the third party charged with mailing it failed to mail it).

The Court affirmed the trial court finding that because Father knew or should have known that Mother was in Utah, he was required to comply with the Utah statute by registering with Human Services within 80 days. Because he did not, he waived his right to notice.

Full Decision available at http://www.utcourts.gov/opinions/supopin/ODea072809.pdf