Property Division is to be Equitable not Equal and Alimony Must have a Conclusion

Boyer v. Boyer, 2011 UT App 141 (Utah Court of Appeals, May 5, 2011)

Husband and Wife divorced.  Husband was awarded his retirement and the business.  He was further awarded a majority of the debt and was ordered to pay alimony.  Wife appealed the property division claiming she should be awarded a portion of the business and Husband’s retirement.  She also appealed the alimony award arguing that the Court failed to consider husband’s fault, (Husband had given wife a STD) and wife’s health.  Wife also appealed the Court’s prospective downward adjustments to alimony.

The Court of Appeals affirmed the property division, finding that while not equal as to the individual parts was equitable when evaluating the entire award.  As to alimony, The Court of Appeals found that there was no need to analyze Wife’s health, because that is not one of the statutory factors.  The Court did not have to analyze fault because it is an optional factor (“Court may consider fault”).  However, the Court remanded the award for further findings as to the prospective downward adjustments (which the Court of Appeals found would be appropriate and consistent with rehabilitative alimony, the trial simply needed to categorize the alimony award).  The Court of Appeals further remanded for findings as to the date of conclusion of alimony. 

Full Decision available at  http://www.utcourts.gov/opinions/appopin/boyer050511.pdf

Passage of Time Itself is not Enough to Invalidate a Divorce Agreement and Post Separation Mortgage Payments Entitle Payor to More Equity

Jacobsen v. Jacobsen, 2011 UT App 161 (Utah Court of Appeals, May 19, 2011).

Parties signed a “divorce agreement” in May 2001 and filed for divorce until 2005. The Trial court upheld the agreement. The trial court also awarded Husband a disproportionate portion of the equity because of his use of inheritance and separate income to retire the mortgage after separation. Wife Appealed.

The Court of Appeals found that Wife had marshaled much of the evidence, but failed to illustrate the “fatal flaw.” It is not enough to merely present all the evidence; the appellant must demonstrate why the evidence is insufficient. The Court also found that the passage of time does not invalidate the agreement.

The Court of appeals further found husband’s payments from post separation income and separate property used to retire the mortgage entitled him to a disproportionate amount of equity.

Wife appealed on several other grounds, but failed to preserve some issues and her other arguments were simply not supported by the evidence.

Full Decision available at http://www.utcourts.gov/opinions/appopin/jacobsen051911.pdf

UIFSA Grants Jurisdiction to Enforce Not to Modify

Osborne v. Osborne, 2011 UT App 150 (Utah Court of Appeals, May 12, 2011)

Osbornes divorced in Arkansas.  Mrs. Osborne moved to Utah and had her Decree domesticated under UFISA and filed for the entry of a QDRO and back alimony.  She was granted the QDRO and back alimony.  Mr. appealed arguing that the court did not have subject matter jurisdiction.

The Court of Appeals found that UIFSA does not give Utah courts the power to modify the Decree, but does allow for enforcement thereof.  The filing of the QDRO and ordering of back support are enforcement issues.  The case must be transferred in order for a decree to be modified.  Also, the Court did not err in finding that Mr. owed the back alimony payments.  (Mrs. Was to be paid alimony until she began to receive her distribution of the railroad retirement benefits).

Full Decision available at http://www.utcourts.gov/opinions/appopin/osborne051211.pdf

Actual Fear Not a Requirement for Stalking Injunction (Reasonable Person Standard Adopted).

Bott v. Osburn, 2011 UT App 139 (Utah Court of Appeals, May 5, 2011)

Wife filed for and was granted a ex parte temporary stalking injunction.  The bases for the stalking injunction were the two telephone conversations in which Girlfriend threatened to shoot Wife.  Wife also knew that Girlfriend had purchased a gun.  The Court entered the permanent stalking injunction.  Girlfriend appealed arguing that Wife did not show she had fear of Girlfriend.

The Court of Appeals affirmed the trial court finding that there were sufficient grounds for the stalking injection because Girlfriend had engaged in a course of conduct that would cause a reasonable person fear (the threats of shooting wife) and Girlfriend knew or should have known that such threats would cause a reasonable person fear.  The Court of appeals found no need for Wife to show actual fear, but that a reasonable person standard should be adopted for the purposes of entering a stalking injunction.

Full Decision available at http://www.utcourts.gov/opinions/appopin/bott050511.pdf

Parties Must be Permitted an Opportunity to Address the Grounds for Dismissal Before the Court May Dismiss

Osburn v. Bott, 2011 UT App 138 (Utah Court of Appeals, May 5, 2011)

Girlfriend filed for, and was awarded an ex parte temporary stalking injunction against Wife.  Wife had allegedly sent several texts, emails, voicemails, and had vandalized Girlfriend's car.  Wife had filed for a Stalking Injunction before Girlfriend.

At the time of the hearing, the judge dismissed Girlfriend's petition stating that her claims should have been and were properly addressed in the previous hearing held before a different judge which addressed Wife's petition.  Girlfriend appealed.

The Court of Appeals reversed and remanded finding that the dismissal was inappropriate without providing Girlfriend an opportunity to address the alleged grounds for dismissal.  If she had been permitted to address the argument that the stalking injunction had been previously adjudicated she could have provided a transcript from the prior hearing, in which the other Judge refused to hear any evidence as to her claims because there were not before him.  Because Girlfriend was not permitted an opportunity to respond to the basis for the dismissal, she was denied due process.

Full Decision available at http://www.utcourts.gov/opinions/appopin/osburn050511.pdf

Right to Counsel in Child Welfare Case is Not a Constitutional Right

State in Re: J.R.G.F., R.F and R. G. v. B.A.F. and T.F. 2011 UT App 97 (Utah Court of Appeals, March 24, 2011).

The trial court terminated Mother’s and Father’s parental rights.  Mother and Father appealed and claimed that they were not informed of their statutory right to counsel prior to trial.  The court also denied their request for counsel mid-way through trial. 

The Court of Appeals found that even if what Mother and Father claimed was true, they must show that the denial of counsel prejudiced their case.  The statutory right to counsel under the child welfare act is different than a constitutional right to counsel.  With a statutory right to counsel, there is no presumption of prejudice when counsel has been denied.  To demonstrate prejudice the party must show a reasonable likelihood of a different outcome if the error had not been made.  Mother and Father failed to meet the burden because of the substantial evidence against them, including: both parents had lengthy criminal histories; both had failed to pay child support; both failed to consistently visit the child.  Conversely the adoptive placement provided a stable loving home, and the individuals were the only consistent parental figures in the child’s life.

Full Decision available at http://utcourts.gov/opinions/juv/JV_jrgf032411.pdf

Subject Matter Jurisdiction Under UIFSA is Based on Domicile

Lilly v. Lilly, 2011 UT App 53 (Utah Court of Appeals, February 25, 2011).

Father physically resides in California due to his active duty service in the military.  The parties were divorced in California and subsequently mother and child moved to Utah.  Father filed a Petition to modify the child support order in Utah because Utah was the resident state of the child, Mother and Father.  The trial court denied the Petition based on a lack of subject-matter jurisdiction because father physically lived in California. Father appealed.

The Court of Appeals found that Utah has subject matter jurisdiction because Father is domiciled in Utah.  Under UIFSA, a state that enters the child support order maintains jurisdiction over child support if the child, obligor, or obligee continue to reside in that state.  The Court of Appeals found that ‘reside’ under the statute refers to a person’s domicile, the place at which the person has been physically present, and where he intends to return, and which he regards as home.  Because the trial court had failed to determine Father’s domicile, the Court of Appeals Reversed and Remanded the case to determine Father’s domicile to determine whether Utah has subject matter jurisdiction to modify the child support.

Full Decision available at  http://utcourts.gov/opinions/appopin/lilly022511.pdf