Extra-Curricular Activities Must Be Budgeted for in Child Support

Davis v. Davis, 2011 UT App 311, Utah Court of Appeals September 9, 2011

Husband and wife divorced in 2002.  The Decree was modified in 2005 because of Husband’s loss of employment and bankruptcy.  In 2008, Wife filed a Petition to Modify because Father’s failure to pay credit card costs had resulted in the creditors seeking payment from her thus lowering her credit score and making it more difficult for Wife to obtain additional credit.  Wife sought to have the child tax benefits awarded to her because of Father’s failure to pay the credit card debt.  She further sought an order requiring Father to pay half of the children’s extracurricular costs, and that the Court modify child support commensurate with the parties’ incomes.  The court granted wife’s Petition.  Father appealed.

The Court of Appeals reversed the trial court on the issue of the past due debt because it should have been dealt with in the 2005 modification.  The Court further reversed on the issue of extracurricular expenses and found that they are not the type of expenses that are required to be equally divided but must be budgeted for with child support or separate agreements to share those costs can be made.

As to child support the Court affirmed the lower court because the issue was not properly preserved by Father.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/davis090911.pdf

Placing Property in Joint-Tenancy Does Not Always Mean Marital Property

Poll v. Poll, 2011 UT App 307, Utah Court of Appeals September 9, 2011

Husband and Wife were married in April 2005.  Wife had substantial amount of money in trust which she used to purchase the parties’ home.  Both parties were listed on the deed.  At divorce the trial court awarded the home in its entirety to wife because of her separate investment in the home.  Husband appealed.

The Court of Appeals found that under Bradford, a transfer of otherwise separate property to joint tenancy with the grantor’s spouse is generally presumed to be a gift and, when coupled with an evident intent to do so, effectively changes the nature of the property to marital property.  In this case, Wife lacked the evident intent to transfer the property to marital property.  The parties made substantial efforts to keep all their accounts separate, which bolstered Wife’s testimony that she had not intent of making the house a gift to the marital estate or to husband.  Affirmed.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/poll090911.pdf

Rebuttal Evidence Need Not Meet the Same Standard as a Prima Facie Case

R.E. v. B.B., 2011 UT 51, Utah Supreme Court August 23, 2011

Father and Mother divorced in 2003.  Father sporadically exercised his parent-time with the parties’ minor child.  On one visit, when mother picked up the child, the child smelled of marijuana. On that basis, Mother obtained a protective order, which prohibited Father’s contact with the child from February 2004 to December 2005.  In December 2005, Mother filed a Petition to Terminate Father’s Rights.  It was denied. Because the parents could not get along, Father’s mother would arrange the visits.  After a visit on April 1, 2007, Mother ceased to take Grandmother’s calls.  In 2007, Mother reinitiated her attempts to terminate Father’s parental rights on the grounds of abandonment. 

The trial court found that Father had abandoned the child shown by his lack of contact with the child for more than 6 months.  The Court of Appeals affirmed.  Father Appealed.

The Supreme Court found that while Mother had met the prima facie case for abandonment by showing a 6 month period with no contact, Father’s evidence need not rise to the level of clear and convincing in order to properly rebut the presumption of abandonment.  Instead Father must only persuade the fact finder that the petitioner has not established abandonment by clear and convincing evidence.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/TE082311.pdf

Relocation Clauses in Decrees that Change Custody are Unenforceable

Elison v. Elison, 2011 UT App 272, Utah Court of Appeals August 18, 2011

Father and Mother were divorced in November 2004.  The stipulated Decree of Divorce included a provision that transferred custody to Father if Mother relocated outside of Utah.  Mother moved and the District Court enforced the decree and the custody transferring provision.  Mother Appealed.

The Court of Appeals found that enforcement of status quo and best interests is the intent of Rule 106 rather than enforcement of the decree.  Rule 106 provides that the Decree that is to be modified stays in effect until the modification is complete.  The court may only change custody or parent-time to address and immediate and irreparable harm.

The Court read this rule to mean that during a modification action, the children should remain with the same primary custodian, unless remaining would threaten immediate and irreparable harm.  Reversed and Remanded

Full opinion available at: http://www.utcourts.gov/opinions/appopin/taylor081811.pdf

Must File Adoption and Petition to Terminate Parental Rights in Order for District Court to Take Jurisdiction, However, Adoption Need Not Be 100% Ripe at Time of Filing

In re R.B.F.S., 2011 UT 46, Utah Supreme Court August 2, 2011

Father signed a relinquishment and consent to adoption  at the time of his divorce in 2005.  In 2007, Mother remarried and she and Stepfather filed to terminate Father's parental rights and complete Stepfather's Petition for Adoption without providing notice to Father.  The Trial Court granted the adoption and termination.  Father appealed.  Father argued that since Stepfather did not qualify to file the adoption proceeding (because the children had not lived with him for one year), the adoption was not properly before the district court and accordingly, neither was the Petition for Termination.  The Court of Appeals agreed with Father and set aside the termination and adoption.  Mother and Stepfather petitioned for, and were granted cert.
The Supreme Court found that the District Court did have jurisdiction to hear the termination because Stepfather had filed the adoption with the termination proceedings.  The Court found no additional requirement that Stepfather qualify perfectly for the adoption before filing to terminate Father's parental rights.  In sum, while an adoption must be filed with the Petition to Terminate Parental rights in order for the district court to have jurisdiction, the Adoption Petitioner need not comply with all of U.C.A. 78B-6-135(7)(b) before filing the actions. Reversed to Court of Appeals to consider any other grounds for appeal.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/InreRBFS080211.pdf

Child Welfare: Completion of Service Plan Does Not Guarantee Reunification; and Award of Permanent Custody is an Appealable Order

In Re: E.L.F., 2011 UT App 244 (Utah Court of Appeals July 29, 2011).
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Mother appeals the Juvenile Court award of custody to Father.  The Court of Appeals first finds that the order of permanent custody to Father is a final and appealable order.  As to the merits of the appeal, the Court found that the Juvenile Court had jurisdiction to make the order and refused to disturb the Order of the Juvenile court because it had foundation for the order.  The Juvenile Court found that Father believed that it was important that the children have a relationship with their mother, and Father was actively engaged in children's lives.  The Juvenile Court also found that Mother had completed her service plan, however, according to treatment providers and other testimony at trial Mother had not internalized her treatment.  Affirmed.
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Full Decision Available at http://www.utcourts.gov/opinions/appopin/JV_elf072911.pdf

Petition to Modify Two-Part Test Must Be Analytically Bifurcated; and Child Support Can be Modified Even if Not Included in Petition to Modify

Doyle v. Doyle, 2011 UT 42 (Utah Supreme Court July 22, 2011).

Mother and Father were divorced and Husband was awarded custody. In the Decree, the Court ordered that if Mother returned to SLC area, the parties would have joint-custody. Mother moved back to SLC area, but Father moved for and obtained a setting aside of that portion of the Decree as a perspective change in custody. Mother then filed a Petition to Modify based on her relocation to SLC and Father’s maltreatment of the minor child. Father moved to bifurcate the trial and have best interests and change of circumstances heard separately. The Trial court denied the motion and the Court of Appeals affirmed. Father petition for writ of cert, which was granted. The Supreme Court found that while the trial court must keep the analysis of changed circumstances and bests interests analytically separate, it need not hold separate trials or limit a witnesses testimony to one or the other. The Court further found that child support is an inherent issue if a change of custody is requested and can be addressed by the court even if not completely pleaded in a complaint.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Doyle072211.pdf