Again, Fault is Not a Factor in Alimony, and Failure to Preserve = Wavier

Fairbanks v. Fairbanks, 2010 UT 31, (Utah Court of Appeals, February 11, 2010).

Husband and wife were divorced Court awarded Wife alimony and her premarital property. Husband appealed. 

Husband argued that he too had made premarital contributions and the trial court did not compensate him.  The Court of Appeals found that Husband failed to preserve this issue and refused to consider any arguments on this issue. 

Alimony.  Husband also argued that Wife should not have awarded alimony based on her fault in the breakdown of the marriage.  The Court disagreed with husband and affirmed the trial court, finding that fault is not a factor in awarding alimony (because the legislature has not defined it).  Further, the Court found that if fault was a factor, Wife had insufficient fault in this case.  Specifically (1) Wife’s refusal to engage in sexual relations after  Husband to her he felt like he had been raped was not cruel treatment; (2) because the parties mutually agreed that Wife would move, there was no desertion; and (3) Wife’s failure to give Husband financial support because she had no surplus does not qualify as neglect.

Husband argued that the trial court improperly admitted evidence.  The Court of Appeals made no ruling on these issues because Husband failed to object at the time the evidence was offered at trial, and thereby, waived any objection.

Concurrence: We should consider fault as a factor, but since we rely on precedent, we cannot consider it.

Full Decision available at http://www.utcourts.gov/opinions/mds/fairbanks021110.pdf

Student Support Contracts are Enforceable So long as they Satisfy the Normal Conditions Imposed on Post Nuptial Contracts

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Ashby v. Ashby, 2010 UT 7, (Utah Supreme Court, February 9, 2010).

Husband attended undergraduate studies in Utah while Wife worked.  They agreed that he would continue graduate studies in St. Louis and Wife would work while he studied in an effort to achieve a future higher standard of living.  At divorce, wife brought claims of unjust enrichment and breach of student support contract.  The trial court dismissed these claims and wife brought a separate civil claim, which the trial court also dismissed.  Wife appealed.  The Court of Appeals reversed the district court’s dismissals and Husband Petitioned and The Utah Supreme Court granted Certiorari.

The Court found that the unjust enrichment claim failed under Martinez.  Finding that any unjust enrichment issue should addressed with alimony.  However, the Court found that the Student Support Contract claim does survive, but that she must bring the claim in the divorce action.  The Court additionally finds that Alimony is not the exclusive remedy to breach of a student support contract, and that Alimony is insufficient in some cases to award the appropriate remedy, such as expectation damages.  As such, the Court affirms the appellate court’s reversal of the dismissal in the civil action.  The Court further instructs the trial court that prior to addressing alimony, it must asses whether there is a postnuptial contract.  If so, it should grant the appropriate remedy prior to making an alimony award or dividing property.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Ashby020910.pdf

Failure to Submit to Corporate Formalities Will Subject Husband and Wife to Corporate Debt.

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Olson v. Olson, UT App. 22, (Utah Court of Appeals, February 4, 2010).

When Parties divorced, they had significant business debt.  Parties had so commingled the business and personal debts and assets that the business was simply and alter ego of the parties.  The trial court divided the business debt between the parties and ordered Husband to pay wife $1000 per month after the sale of the home.  Wife appealed those issues and many others including the valuation of the marital home, and the exclusion of her expert. 

The Court of appeals declined to rule on a number of the wife’s issues because she did not adequately brief the issues; she failed to show preservation, standard of review, and failed to cite relevant authority.  

The Court of Appeals affirmed all trial court findings.  The parties business failed to be a corporation in all respects. As to alimony, the tying of alimony to the sale of the home was property and shows that she is living rent free and that when they sell the home she will have need.  The court appropriately based the valuation of the home on Husband’s testimony as a knowledgeable owner.  The trial court appropriately excluded Wife’s expert because she had not provided an expert report from him.  A trial court can strike an expert’s testimony when the proponent failed to file an expert report and failed to list him on her witness list as and expert.

Full Decision available at http://www.utcourts.gov/opinions/appopin/olson020410.pdf

One Year Anniversary

This blawg is now one year old and contains all the family law decisions from the Utah Appellate Court and Utah Supreme Court.

It has been a long year and we have lost some dear friends in our legal community.  It would be inappropriate for me to review the last year without recognizing their passing.  I am speaking in with regard to Nyal Bodily and Craig Snyder.

I hold both Nyal and Craig out as my examples and men I consider mentors.  Nyal’s example exhibits that one can be of high moral character while advocating for his client.  Craig’s example exhibits that old dogs can learn new tricks, and he can certainly teach a few.  My hope for myself and for others in our family law community can emulate the good characteristic exhibited by Nyal and Craig.  Our condolences are with their families, but our memories are good and supported by the eternal public record, both exhibit that Craig and Nyal are as good as any and better than most.

We move forward, and I will continue to supply the summaries as the cases become available and I appreciate your comments.

Thanks for reading.

Utah Criminal Blawg

As a spin-off of the Utah Family Blawg, which is now a year old, I have created the Utah Criminal Blawg.

In the Utah Criminal Blawg, I do not plan summarize all the appellate court decisions regarding criminal cases, but will attempt to summarize any and all decisions narrowing or expanding current case law.

Feel free to email me with any comments or suggestions utahcriminalblawg@gmail.com.

Divorce: Separate Property Remains Separate in the Absence of Enhancement

Soderborg v. Soderborg, 2009 UT App. 359, (Utah Court of Appeals, December 3, 2009).

Husband inherited two properties. When received, they were in poor shape and husband worked several years to make them profitable. After they became so, Husband spent a large amount of time managing the properties. Upon divorce, the Court awarded the properties to husband. Wife Appeals.

Wife argues that Husband’s labor spent in making the properties profitable and in managing the properties was a marital asset and as such, the marital estate is entitled to reimbursement of the work or, in the alternative, an interest in the properties. The Court of Appeals disagreed with Wife and affirmed the trial court finding that Husband inherited the properties. As an inheritance, it overcomes the presumption that it is marital property and remains separate. Wife makes no argument that she enhanced, maintained, or protected the property as such, the Court ordered it remain separate. The Court found that wife had no claim for husband’s labor and time spent on the properties.

Additionally, Wife argued that she was entitled to alimony. However, the Court again disagreed and affirmed, finding that while Wife physician may not have formerly released her to work, she provided no evidence that she had requested such a release because she of that her ability to work was not adequately shown to be impaired.

Full Decision available http://www.utcourts.gov/opinions/mds/soderborg120309.pdf

Alimony: Fault No Longer a Factor When Considering Alimony

Mark v. Mark, 2009 UT App. 374, (Utah Court of Appeals December 10, 2009).

Wife earned significantly more than Husband. Husband was in school was to complete his degree in one year. The trial court awarded husband $1200 per month as rehabilitative alimony for one year, and denied his request for attorney fees. Husband appealed.

Husband argued that the court failed to make adequate findings to support the alimony award, that the alimony should be permanent (instead of rehabilitative) and that considering fault was inappropriate. The appellate court Reversed the trial court’s alimony award finding without adequate findings the Appellate Court could not determine the validity of the award. The Court further found that Husband had weak employment prospects and that it was unlikely that he could earn enough to maintain the lifestyle enjoyed during the marriage. Thus, the award of only rehabilitative alimony was an abuse of their discretion. Finally, because the policy of alimony is to provide support and not to reward or punish, adjusting any award because of fault is inappropriate. Remanded to trial court for further findings all factors, but eliminating fault as a factor

Court Affirmed the non-award of attorney fees. The Court found that the trial court must only make findings if it makes an award of attorney fees. If there is not award, there is not requirement to make findings.

DISSENT: The trial court should consider fault. The legislature has given the courts the factor of fault and failing to consider it simply because it is not defined is replacing the legislature’s judgment with our own.

Full Decision available http://www.utcourts.gov/opinions/appopin/mark121009.pdf