Divorce: Separate Property Remains Separate in the Absence of Enhancement

Soderborg v. Soderborg, 2009 UT App. 359, (Utah Court of Appeals, December 3, 2009).

Husband inherited two properties. When received, they were in poor shape and husband worked several years to make them profitable. After they became so, Husband spent a large amount of time managing the properties. Upon divorce, the Court awarded the properties to husband. Wife Appeals.

Wife argues that Husband’s labor spent in making the properties profitable and in managing the properties was a marital asset and as such, the marital estate is entitled to reimbursement of the work or, in the alternative, an interest in the properties. The Court of Appeals disagreed with Wife and affirmed the trial court finding that Husband inherited the properties. As an inheritance, it overcomes the presumption that it is marital property and remains separate. Wife makes no argument that she enhanced, maintained, or protected the property as such, the Court ordered it remain separate. The Court found that wife had no claim for husband’s labor and time spent on the properties.

Additionally, Wife argued that she was entitled to alimony. However, the Court again disagreed and affirmed, finding that while Wife physician may not have formerly released her to work, she provided no evidence that she had requested such a release because she of that her ability to work was not adequately shown to be impaired.

Full Decision available http://www.utcourts.gov/opinions/mds/soderborg120309.pdf

Alimony: Fault No Longer a Factor When Considering Alimony

Mark v. Mark, 2009 UT App. 374, (Utah Court of Appeals December 10, 2009).

Wife earned significantly more than Husband. Husband was in school was to complete his degree in one year. The trial court awarded husband $1200 per month as rehabilitative alimony for one year, and denied his request for attorney fees. Husband appealed.

Husband argued that the court failed to make adequate findings to support the alimony award, that the alimony should be permanent (instead of rehabilitative) and that considering fault was inappropriate. The appellate court Reversed the trial court’s alimony award finding without adequate findings the Appellate Court could not determine the validity of the award. The Court further found that Husband had weak employment prospects and that it was unlikely that he could earn enough to maintain the lifestyle enjoyed during the marriage. Thus, the award of only rehabilitative alimony was an abuse of their discretion. Finally, because the policy of alimony is to provide support and not to reward or punish, adjusting any award because of fault is inappropriate. Remanded to trial court for further findings all factors, but eliminating fault as a factor

Court Affirmed the non-award of attorney fees. The Court found that the trial court must only make findings if it makes an award of attorney fees. If there is not award, there is not requirement to make findings.

DISSENT: The trial court should consider fault. The legislature has given the courts the factor of fault and failing to consider it simply because it is not defined is replacing the legislature’s judgment with our own.

Full Decision available http://www.utcourts.gov/opinions/appopin/mark121009.pdf

Interference with Parent-Time + Moving = Sufficient Grounds for a Change of Custody

Hanson v. Hanson, 2009 UT App. 365, (Utah Court of Appeals, December 10, 2009).

Mother had moved to Louisiana and Father had filed a Petition to Modify. At trial, Father offered evidence that besides moving to Louisiana, Mother had also substantially interfered with Father’s visitation. The trial court awarded custody to Father. Mother appealed.

On appeal, Mother argued that increasing the distance from extended family is not sufficient grounds to change custody. The Court agreed, however affirmed the trial court finding that when moving away from family is combined with substantial interference with parent-time it is sufficient grounds to change custody.

DISSENT: The remedy for noncompliance with the parent-time order is contempt, not a change of custody. The primary caretaker factor is paramount and a custody arrangement should rarely be disturbed.

Full Decision available http://www.utcourts.gov/opinions/appopin/hanson121009.pdf

Divorce: Taking Decision Under Advisement = Sufficient Judicial Participation

Brough v. Brough, 2009 UT App. 344, (Utah Court of Appeals, November 27, 2009).

At trial, the district court directed Husband and Wife to prepare proposed Findings of Fact and Decrees. Both did, and the district court took the matter under advisement. The judge adopted wife’s Findings and Decree. Husband appealed claiming that the district court judge did not adequately participate in the proceedings.

The Court of Appeals affirmed the trial court, and found that the trial court’s actions of taking the matter under advisement and asking both parties to prepare proposed orders was sufficient participation. The district court also made notes regarding its initial view of the case. The notes demonstrate that the trial court agreed initially with Wife’s position and found Husband’s position to be “ridiculous.”

Court also found the actions of the parties changed premarital property to marital property and subject to distribution. Husband argues also that the ante-nuptial agreement reserved his property as separate. However, this agreement was made with the understanding that wife was not associated with that property; conversely, during the marriage she became substantially associated to that property.

Finally, the Court that the award of attorney fees was also correct for two reasons: Wife’s financial need and Husband’s ability to pay, and because Wife had substantially prevailed on her claims at trial; and on appeal as well. The Court remanded the matter for the trial court to determine adequate costs for appeal.

Full Decision available http://www.utcourts.gov/opinions/mds/brough112709.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

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