Unwed Biological Fathers Must Strictly Comply With the Statute to Be Entitled to Contest an Adoption

E.G. and N.G. v. C.C.D., 2010 UT App. 114, (Utah Court of Appeals, May 6, 2010).

C.C.D. challenges the adoption of his biological daughter, which took place without his consent.  The trial court found that C.C.D. did not strictly comply with Utah Code § 78B-6-121 because he failed to plan what he would do if he was deported.  The Court Appeals found that when strict compliance with the statute is required, the trial court shall not require more than the statute, therefore requiring a contingency plan for deportation was in error.  However, Because C.C.D. did not agree to pay child support in his affidavit he did not strictly comply with that provision of the statute.  Because of this failure, the Court Affirmed the trial court’s denial.  The Court also noted C.C.D. failed to properly raise and preserve the constitutional claims raised on appeal.

DISSENT: Judge Thorne opined that C.C.D. did strictly comply with the statute by agreeing to “assist Mother in taking responsibility for the unborn child, and to help mother with expenses.”  Judge Thorne also expressed concerns about the current policies expressed by the statute to divest unwed biological fathers of parental rights with very little due process and strict compliance. 

Full Decision available at http://www.utcourts.gov/opinions/appopin/babygirl101050610.pdf

Stipulation Will be Enforced Unless the Unfair or Unreasonable

Robinson v. Robinson, 2010 UT App. 96, (Utah Court of Appeals, April 22, 2010).

Husband and wife stipulated as to property division.  Husband would refinance a portion of the parties’ marital property and pay Wife from the proceeds.  Husband moved to set aside the stipulation because of mistake and impossibility, as he would not be able to obtain the loan because the property was not producing adequate income.  The trial court commissioner denied the motion to set aside and Husband appealed.

The Court of Appeals affirmed the trial court and found that at the time the parties signed the stipulation, Husband assumed the risk of not having enough information.  His failure to obtain the missing information is not a mutual mistake.  The Court also found that there was no unforeseen event to justify rescinding the contract for impossibility.

Husband also argued that the court never found that the stipulation was fair and reasonable. The Court finds that no such finding is required; a stipulation a trial court should enforce a stipulation unless the trial court finds that it is unfair or unreasonable.  Husband also appealed the denial of his request for an evidentiary hearing.  The Court found that there was not factual dispute and therefore no need for an evidentiary hearing.

Full Decision available at http://www.utcourts.gov/opinions/appopin/robinson042210.pdf

Common Residence + Sexual Contact + Husband-Wife Relationship≠ Cohabitation

Myers v. Myers, 2010 UT App. 74, (Utah Court of Appeals, April 1, 2010).

Husband and Wife were divorced and Husband was ordered to pay alimony.  After the divorce, Wife never had a permanent home, but often stayed with her parents.  Husband alleged, and the trial court found, that wife, while in her parents home, engaged in sexual contact with a foster child living in her parents home.  Husband moved to terminate alimony based on cohabitation with the foster child.  The trial court found cohabitation based on a common residence and sexual contact.  Wife Appealed.

The Court of Appeals reversed and remanded the case, finding that the Court failed to establish that Wife and the foster child engaged in a relationship akin to a husband-wife relationship.  The Court found that Husband failed to show Wife shared expenses with the foster child, shared decision-making, shared space, or shared meals.  The Court found that, Husband had shown that Wife and foster child conducted themselves as boyfriend and girlfriend and not as husband and wife.

Full Decision available at http://www.utcourts.gov/opinions/appopin/myers040110.pdf  

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.