No Motion to Compel Will Be Granted Unless Rules Are Followed

Rahofy v. Steadman, 2010 UT App 350 (Utah Court of Appeals December 9, 2010).

Steadman had sent letters to Rahofy requesting that she sign release forms for medical and employment information unrelated to her cause of action.  She refused.  The trial court granted a motion to compel forcing Rahofy to sign the releases.  Rahofy appealed.

The Court of Appeals found that the Utah Rules of Civil Procedure allow the parties to seek discovery informally a party cannot be compelled to respond to an informal discovery request.  A party may send a request for production of documents under Utah Rules of Civil Procedure Rule 34(a)(1), however if the documents are not in their possession, they cannot be forced to produce documents that they do not have.  Additionally, formal requests can be objected to, letters cannot.  In short, there was no formal request for the signed releases, and thus no opportunity to formally object to such a request.

It may be that Steadman was entitled to the documents he was seeking.  However, such an entitlement must be established by proper procedure and not by informal requests.  Additionally, Defendant did not even attempt to obtain the records through a subpoena, which is a proper method to obtain documents in the possession of a third party.  Because Defendant did not follow the rules of civil procedure in obtaining the discovery, the Order granting the Motion to Compel is Reversed and Remanded.

Full Decision available at http://www.utcourts.gov/opinions/appopin/rahofy120910.pdf

DCFS Guidelines Are Neither Administrative Rules Nor Statute

K.Y. v. DCFS, (Utah Court of Appeals November 26, 2010).

Juvenile Court found K.Y., a teacher, neglected the student according to DCFS Guidelines’ definition of emotional maltreatment.  The teacher taped the student’s wrists to her desk with a six inch piece of scotch tape for two minutes as a method of discipline.

 

The Guidelines were neither promulgated as rules nor codified in statute and as such were neither rules nor statute and do not have the force of law.  The Juvenile Court based its entire ruling on only the DCFS guidelines, and never considered the statutory definitions of abuse or neglect.

 

The Court of Appeals found that K.Y.’s actions did not meet the statutory definition of neglect.  Additionally, there was insufficient evidence for any finding of abuse, and the JV court did not evaluate whether the teacher’s actions were a form of reasonable discipline.

In short, the JV Court did not use the correct analysis.  Under the correct analysis, K.Y.’s actions were neither neglect nor abuse.  The ruling of the JV court is Reversed.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/JV_ky112610.pdf

Subject Orders are Not Final Appealable Orders

In re JMS and JRS, C.S.S. v. Stat e of Utah, (Utah Court of Appeals November 18, 2010).

Juvenile Court entered an order removing Father’s (C.S.S.) children from his home, but stayed the implementation of the order allowing Father to keep his children in his home if he complied with DCFS recommendations.  Father failed to comply, the stay was lifted, and the children were removed from the home.  Father filed an interlocutory appeal, which was denied.  He then filed this standard appeal.

The Court of Appeals found that the removal of the stay was not a final appealable order.  A final order is one that leaves no question open for further judicial action or effects a change in the permanent status of the child.  Removal of children from Father’s home was what the court considered a mere fact that did not indicate finality.  Dismissed for lack of jurisdiction.

Concurrence: Judge Thorne reiterated the Opinion of In re A.R., 982 P.2d 73 (Utah 1999), children should not be removed as punishment for failure to comply with court orders.  He additionally addressed the Constitutional concerns that children might be removed from a parent’s home without a final order leaving the parent without means for appeal.  However, Judge Thorne concluded that the interlocutory appeals system appropriately addresses this concern.  However, he noted that these appeals are discretionary and not allowed as a right of the parent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_jms111810.pdf

Appellate Brief Must Provide Basis for Appeal

Morford v. DCFS, 2010 UT App. 285, (Utah Court of Appeals October 15, 2010).

The trial court entered summary judgment for DCFS on the Mofords’ negligence and breach of contract claim based on DCFS’s failure to provide reunification services between the Morfords and their foster son prior to the relinquishment of parental rights and DCFS’s alleged misinformed report that the foster son no longer wanted to live with the Morfords.  The Morfords appealed.

The Court of Appeals refused to evaluate the merits of the Morfords’ claims because of severe failings in their appellate brief.  The brief’s table of authorities did not correspond to the brief.  It was as if the submitted table was for a different brief.  The brief failed to supply the text of the statute on which the Morfords were relying.  It failed to cite the preservation of the issues in the trial court record.  It failed to provide an adequate record to even address the Morfords’ claims.  The argument section cites authority, but does not apply the authority to the facts of the Morfords’ claims.  Because of the failure of the brief, the Court of Appeals affirmed the trial court’s entry of summary judgment.

Full Decision available at http://www.utcourts.gov/opinions/appopin/morford101510.pdf

Alimony Must be Based on Sufficient Findings and Alimony Cannot Exceed Needs

Fish v. Fish, 2010 UT App. 292, (Utah Court of Appeals October 21, 2010).

Wife was awarded $800 per month in alimony.  Husband appealed.  He argued that the trial court had insufficient evidence to make findings as to the parties’ ability to earn and their needs.  The Court of Appeals found that testimony alone is sufficient evidence for imputation of income, and that Husband’s enrollment in a Technical College did not preclude imputation of income.  If a party already has basic job skills, he cannot rely on the schooling to avoid the imputation of income.  However, the findings of the trial court did not support the level of income imputed to husband as required by U.C.A. 78B-12-203(7)(b) (2008).  Without such findings, the trial court cannot impute income.  Additionally, the trial court made no findings as to Husband’s ability to pay and therefore the alimony award was an abuse of discretion and reversed.  The Court also found ability to earn cannot be based on monthly income alone, but must be based on the U.C.A. 78B-12-203(7)(b) factors, reversing the trial court’s finding that wife’s ability to earn directly correlates with her current income. 

Lastly, simply because the parties combined needs exceed their combined incomes does not prove that the parties’ standard of living is not commensurate with the standard of living at the time of the marriage, it simply proves that the cost to sustain two households is greater than the cost to sustain one.

Full Decision available at http://www.utcourts.gov/opinions/appopin/fish102110.pdf

Stability Is Key Factor in Deciding Best Interests of Special Needs Children

Grindstaff v. Grindstgaff, 2010 UT App. 261, (Utah Court of Appeals September 23, 2010).

Mother appealed the trial court’s award of custody to Father.  Mother and Father had two children, one with special needs.  The trial court found that the parties had been equally engaged in raising the parties’ minor children.  The trial court found that while stability was important for all the children, it was critically important to the parties’ special needs child. Because Mother had planned to move to Nevada, the trial court awarded custody to Father. Mother’s claim for joint custody was likewise denied because of the critical need for stability.

Wife also appealed the trial court’s refusal to admit testimony her expert.  At trial, Wife’s counsel conceded that the expert was not a custody evaluator; as such, any findings by her expert could not be used to rebut the custody evaluator’s findings. 

Finally, as to Wife’s denied attorney fees that were denied at trial because Father did not have the ability to pay the attorney fees,  the Court of Appeals found that while the trial court has a duty to hold a party in contempt, it also has great discretion in crafting a punishment to ensure compliance.

Affirmed on all issues.

Full Decision available at http://www.utcourts.gov/opinions/appopin/grindstaff092310.pdf

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