Child Support: Child Support Follows the Child

Hansen v. Hansen, 2009 UT App. 152, (Utah Court of Appeals, June 11, 2009).

Trial Court denied Father's Petition to Modify Child Support. Father appealed to the Utah Court of Appeals. Father argued that his daughter was living in a transitional home supported by Volunteers of America. Since support should follow the child, he argued that both parties should pay support to VoA. The Court found that this statute only applied to when a child moves to the other parent, a relative, or the state. In this case, the child is not in the custody of the state for two reasons: (1) Volunteers of America is not run by the state, but by volunteers and (2) Mother is still responsible for the child and has retained custody. The Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport the child to the doctor and counseling appointments, attend to her medical needs and pay her medical expenses. The Child also stays frequently in the Mother's home. The Court affirmed; finding that since custody had not changed, child support should not change.

Note: Mother asked for attorney fees. However, Mother failed to set forth a specific legal basis for the award of fees. No attorney fees awarded.

Full Decision available at http://www.utcourts.gov/opinions/mds/hansen061109.pdf

Alimony: Imputed Income Must Be Based on More Than Mere Conjecture

Hawks v. Hawks, 2009 UT App. 149, (Utah Court of Appeals, June 4, 2009).

Trial Court imputed Wife's income at minimum wage of part-time work. Husband appealed to the Utah Court of Appeals. The trial court must consider (1) the financial condition and needs of the recipient spouse, (2) the recipient's earning capacity, and (3) the ability of the payor spouse to provide support. When considering the recipient's earning capacity, the court may impute income. However, imputed income cannot be premised upon mere conjecture, but demands a careful and precise assessment requiring detailed findings. The trial court had determined Wife's need, Husband's ability to pay and based her capacity to earn on the difference between the two. Because the trial court had failed to make adequate findings their imputation of income was reversed and the Court found that there was nothing that suggested that wife was not able to work full time at minimum wage. As such she was imputed income of minimum wage on a full time basis. The Court than deducted the added amount from the alimony award.

Full Decision available at http://www.utcourts.gov/opinions/mds/hawks060409.pdf

Divorce: Failure to Supply Transcript= No Appellate Review, AND Separate Property with Appreciation Thereon Should be Awarded to its Owner

Thompson v. Thompson, UT App. 10, (Utah Court of Appeals, April 16, 2009).

Husband appealed trail court’s equitable division of premarital 401(k) and premarital portion invested in the home.

The Utah Court of Appeals first laid out the procedure for property distribution: (1) the court must categorize the asset (is it marital or separate property?); (2) if the property is separate property, the property and the appreciation is awarded to the owner unless the other party meets one of the exceptions (the exceptions are: enhancement, maintenance, or protection of asset, (b) commingling, (c) to obtain a just and equitable result); (3) if it is a marital property each spouse receives a roughly equal share. The court should detail the steps it took in making the distribution.

Home—yet again the Court was deprived of the opportunity to make a decision on this issue be because Husband failed to provide a transcript. Affirmed on this issue.

401(k)—Like other separate property, if a retirement account is separate property it should be awarded to the owner with appreciation thereon. Therefore, the Court Reversed and Remanded this issue to determine the appreciation on the separate property and ordered the trial court to award the premarital contribution with its appreciation to Husband.

Full Decision available at http://www.utcourts.gov/opinions/appopin/thompson041609.pdf

Divorce: Failure to Present Adequate Evidence on Property Results in Remand.

Child v. Child, UT App. 97, (Utah Court of Appeals, Memorandum Decision, April 9, 2009).

Procedural History: This matter was before the Court of Appeals in September of 2008 (2008 UT App 338).  At that time, the Court of Appeals described the strict evidence marshalling standard that applies to issues of fact on appeal.  The appellant must marshal all the evidence and show that even in when viewed in a light most favorable to the appellee, it is legally insufficient.  The Court of Appeals also found that a portion of the property was premarital and summarily awarded it to the Husband.

Wife appealed this issue and the Supreme Court reversed the appellate court and remanded because there was inadequate evidence to make any finding as to the ownership of the property in question.  (see Child v. Child, 2009 UT 17).

The Appellate Court specially ruled that a party [is presumed to retain] his separate property brought into the marriage, as well as any appreciation thereon.  To rebut this presumption the other party must show that it has done something to establish one of the exceptions (enhancement, maintenance, or protection of the property). See Dunn and Mortensen.

 

The Court of Appelas remanded the matter for further findings as to the ownership of the property.

Full Decision available at http://www.utcourts.gov/opinions/mds/child040909.pdf

Divorce: Trial Court’s Failure to Make Adequate Findings on Property and Attorney Fees Results in Remand.

Jensen v. Jensen, UT App. 1, (Utah Court of Appeals, January 2, 2009).

Trial Court awarded Wife half of the increase in value of Husband’s premarital business interest.  The Court also awarded Wife attorney fees.  Husband appealed.  The Utah Court of Appeals reversed and remand finding, that the trial court failed to make an express finding of ownership of the business (required by Stonhocker); second, the court had erred when it awarded wife 50% of the total business’ increase in value, since Husband only owned 50% of the business the Court could only award Wife half of his 50% share of the increase in value, instead; third, however, since the business was separate property and because wife had not made any significant specific contribution specific to the business (i.e. did not assist in running the business) that she was not entitled to any portion of the increase.

As to attorneys fees, the court failed to make proper findings regarding Wife’s need, Husband’s ability to pay, and Reasonableness of the fees, as required by Stonehocker.  As such the award of fees was also reversed and remanded.

Full Decision available at http://www.utcourts.gov/opinions/appopin/jensen010209.pdf

Custody: Joint-Custody Cannot Be Ordered Unless One of the Parties Submits a Parenting Plan

Trubetzkoy v. Trubetzkoy, 2009 UT App. 77, ---P.3d---, (Utah Court of Appeals, March 19, 2009).

Sergei Trubeztkoy was awarded joint-legal custody of the parties’ minor children, and a larger portion of the marital estate. Leslie Smith Trubetzkoy (Wife) appealed the trial court’s decisions as to custody, parent-time, the accounting of the business, and grounds for divorce. The Court of appeals affirmed the property distribution and the grounds for divorce, but reversed and remanded the trial court decision on custody.

The Court found that before a trial court can award joint-legal custody either or both parties must submit a proposed parenting plan. Without a parenting-plan the trial court cannot award joint-custody of the children. If a parenting plan has been submitted, then the court should then evaluate the best interests of the children. Addtionally, the court found that the statutory parent-time schedule is presumed to be in the best interests of the children. The burden is on the party attempting to deviate from the statute. Mother failed to justify the deviation. While the property distribution was disproportionate it was not disproportionate enough to be an abuse of discretion. Wife’s final request was for the Court to change the grounds of divorce from irreconcilable differences to adultery. The Court denied this request because it was based solely on Wife’s preference.

Full Decision available at http://www.utcourts.gov/opinions/appopin/trubetzkoy031909.pdf

Divorce: Judicial Statements Without findings Cannot be the “Law of the Case;” and Court Cannot Disregard Admissions

Kotter v. Kotter, 2009 UT App. 60, ---P.3d---, (Utah Court of Appeals, March 5, 2009).

Bart Kotter was ordered to pay Elizabeth Vienna (Kotter) alimony and $800,000 for half of the value of the parties’ business. A previous judge conducted a judge-led arbitration off-the-record in which he considered only the final award of the parties’ business. The judge awarded the business to Husband and indicated that half the value should be awarded to Wife, along with alimony. The judge ruled that based on the previous judge’s statements as to alimony and the cost of the business, to be law of the case, in spite of the lack of findings. He also dismissed Husband’s motion for summary judgment which was based on Wife’s failure to respond to Request for Admissions. Husband appealed to the Utah State Court of Appeals. 

The Court Reversed and Remanded the case and found that because the previous judge did not make the requisite findings to support alimony or the business valuation. So, there was no “law of the case.” As such, the Court reversed both rulings.

The Court also found that the issues of alimony and business valuation were settled because Wife failed to respond to a Request for Admissions. Wife conceded that she had not responded; and, neither she nor her counsel ever requested that the admissions be amended. Therefore, they were deemed admitted, and the Court instructed the lower court to enter summary judgment.


The more important point is that even without the admission, Wife failed to provide her monthly accounting and provided no evidence as to her income.  Without evidence on her monthly income and expenses the Court could not make any award of alimony.

Full Decision available at http://www.utcourts.gov/opinions/appopin/kotter030509.pdf