Adoption: To Challenge an Adoption, an Out-of-State Father Must Comply With State Requirements Where He and the Mother Resided

H.U.F. and G.F. v. W.P.W., 2009 UT App. 10, (Utah Supreme Court, February 10, 2009).

W.P.W. the putative father of Baby Girl Stine challenged the trial Court’s findings that he failed to comply with the Utah requirements to challenge the adoption of B.G.S. W.P.W. appealed on added that the trial court violated his equal protection and due process rights. This matter was certified to the Supreme Court bypassing review by the Utah Court of Appeals.

The Supreme Court affirmed the trial court. First, the Court found that W.P.W. failed to preserve his Constitutional claims (due process and equal protection) by failing to argue those claims to the trial court. Second, Father argued that he established his right to contest the adoption because he had no notice of the mother’s move to Utah and because he complied with the Arizona law; where he and mother resided prior to the birth of B.G.S. However, the Supreme Court found that in order to challenge the adoption, Arizona law required W.P.W. to file a Paternity action within 30 days of receiving notice of a possible adoption. W.P.W. failed to file for Paternity within the 30 days; therefore he did not comply with the most stringent requirements. Because of his failure, he could not contest the adoption. Additionally, he failed to comply with the Utah law because he had reason to believe that the mother was residing in Utah.

Full Decision available at http://www.utcourts.gov/opinions/supopin/HUF021009.pdf

Income to Which a Payor Spouse Would Receive But For His Bad Acts May Be Imputed To Him

Young v. Young, ---P.3d---, 2009 UT App. 3, (Utah Court of Appeals, January 2, 2009).

Darrel Edward Young (Husband) was incarcerated at the time he became eligible for social security benefits. Because of Husband’s incarceration for a felony conviction he was not permitted to receive his benefits. However, Willa Mae Young (Wife), Darrell’s ex-wife filed for increase in spousal support in Utah’s First District Court. Wife claimed that husband’s recent eligibility for benefits was a substantial change in circumstances and that the benefit amount that he would receive should be calculated as income. The trial court agreed and changed the spousal support from $50 to $600, based on the eligibility. Husband appealed to the Utah Court of Appeals.

The Appellate Court affirmed the trial court's opinion. The Court found that the receipt of retirement benefits or social security can constitute a change in circumstances sufficient for a modification. Additionally, but for husband’s bad acts leading to his incarceration, he would receive the Social Security benefit. Lastly, based on the Husband’s imputed income and now the new income that he would be receiving from Social Security, his income is now 70% of the parties’ gross income and as such he was ordered to pay 70% of the combined attorney fees.

Full Decision available at http://www.utcourts.gov/opinions/appopin/young010209.pdf

Divorce: Failure to Supply an Adequate Record = No Appellate Review.

Anderson v. Allred fka Anderson, 2009 UT App. 5, (Utah Court of Appeals, January 2, 2009).

Elizabeth Allred fka Anderson appealed the trial court’s award of custody and child support. However, Allred provided only her recollection of the trial court proceedings. She argued that under Utah Rules of Appellate Procedure, rule 11(g) allowed her to proceed on recollection because she could not afford to obtain a transcript of the trial. The Court outlined the proper process for proceeding under 11(g). The appellant must then serve the prepared statement of recollection on the opposing party. The other party is permitted to object to any offending portions. Such objections are settled by the trial court prior to appellate review. The Court found that Allred failed to proceed properly and that the Court was unable to rule on the case based on her unilateral statements.

Full Decision available at http://www.utcourts.gov/opinions/mds/allred010209.pdf

Juvenile Court, Termination of Parental Rights: Relinquishment is Irrevocable and Failure to Supply an Adequate Record = No Appellate Review.

Re: D.A., J.A. v. State of Utah, 2009 UT App. 4, (Utah Court of Appeals, Memorandum Decision, January 2, 2009).

J.A. the father of D.A. relinquished his rights. After the relinquishment, he appealed the termination arguing that the relinquishment was induced by undue influence of his counsel and that his counsel was ineffective. The Court outlined that when a parent relinquishes their parental rights, that relinquishment is irrevocable. Upon review of the record, the Court found that the father certified that he understood the relinquishment and voluntarily signed it. As to the claim that his counsel was ineffective, he provided no record from the trial court that supported his allegation. As such, the Court could not consider this claim.

Full Decision available at http://www.utcourts.gov/opinions/mds/JV_da010209.pdf

Court May Terminate Alimony Retroactively Based on Cohabitation

Black v. Black, 199 P.3d 371, 2008 UT App. 465, (Utah Court of Appeals, December 18, 2008).

Kim S. Black (Wife) and Jon Cornell Black (Husband) were married in 1980 and divorced in 1989. In June of 2001, Husband filed his first Petition to Modify the Decree to terminate alimony. Husband served interrogatories on Wife. One of the questions listed, asked Wife to list any individuals residing in her home. She failed to list her cohabitant Mr. Tomlin. Thereafter, Wife attempted to conceal the cohabitation. In 2005, Husband learned of the cohabitation and amended his petition to include it as grounds for termination of alimony. The trial court terminated alimony retroactively to the date of the original petition (relying on UCA § 78B-12-112). Wife appealed.

The Appellate court affirmed the trial court. However, the Court found that while the reliance on UCA § 78B-12-112 was misplaced in this case and should have instead used UCA § 30-3-5(10). UCA § 30-3-35(10) requires that alimony be terminated immediately upon establishment of cohabitation. However, the exact moment of cohabitation is difficult to determine. The statute is also silent as to retroactivity. This silence allows the trial court to decide the appropriate reach of the termination order based on the facts in this case. Based on Wife’s egregious attempts to conceal her cohabitation, the award of retroactive termination was well within the trial court’s discretion and is left undisturbed upon appellate review.

Full Decision available at http://www.utcourts.gov/opinions/appopin/black121808.pdf

Divorce: Give the Court Sufficient Evidence. Otherwise, Your Award Could Be Overturned.

Leppert v. Leppert ---P.3d ---, 2009 UT App. 10, (Utah Court of Appeals, January 16, 2009).

The parties were awarded a bifurcated divorce in 2004. A temporary support order was in place from 2004 until 2006 when husband requested that the court modify the temporary order, which resulted in trial. The parties appealed on several grounds.

Wife appealed the trial court findings as to imputed income, alimony, division of property, and division of debt. Husband appealed the trial court's decision to separate the debts as to the date of separation instead of the date of divorce.

Imputation of Income: The Court relied on the trial court's extensive findings as to wife's employability and estimated hourly rate. Because of the findings, the Court chose not to disturb the trial court's order as to imputation of income.

As to alimony, division of personal property, royalty payments, and division of debt, the Court found that the trial court failed to make adequate findings. Because of the lack of findings, the Appellate Court reversed the awards and remanded the issues for further findings.

Attorney fees: The Court remanded the award and noted that courts must base and award of attorney fees on the need of the moving party, the ability of the other to pay, and the reasonableness of the requested amount. The Court also remanded the issue of attorney fees because of the lack of findings of the trial court.

Full Decision available at http://www.utcourts.gov/opinions/appopin/leppert011509.pdf

Utah Family BLAWG

Purpose of the Blawg--With this blog I hope to summarize each family law related opinion that is handed down from the Utah Supreme Court and Utah Court of Appeals. Here you may also find commentary of news in family law. Feel free to criticize and/or disagree with the Courts' recent decisions, or my editorials etc... I hope also to correctly tag each entry for easy searching. The tags will include: property division, child support, parent time, spousal support, and others. If you think a tag should be added to an article, let me know. That's it-- enjoy and give me feedback.