Being Fired is Insufficient Proof of Underemployment

Busche v. Busche, 2012 UT App 16, January 20, 2012

Parties divorced in January 2005.  Husband Petitioned to Modify the Decree because he had been fired from his employment.  At the time of trial on the modification, Husband was employed but at earning less.  The trial court found that because Husband was fired, that he was voluntarily underemployed.  The trial court also awarded Wife attorney fees.  Husband appealed.

The Court of Appeals found that evidence because a party was fired is insufficient to prove underemployment.  The Court is required to not only review the circumstances of a party’s loss of employment, but also their conduct after the end of the employment.  See U.C.A. § 78B-12-203 (7)(b) for imputation factors.  Because the trial court did not consider the imputation factors, the matter is Reversed and Remanded for further findings by the district court.  Court of Appeals noted later in the decision that in order to include income above regular employment, the income must be regular and consistent.

As to attorney fees, the Court found that the fees awarded for Wife’s substantially prevailing in an Order to Show Cause hearing was appropriate.  The trial court also awarded Wife attorney fees for the remainder of the case but reduced the amount.  However, the trial court made only cursory findings as to the reasonableness of the fees.  Court of Appeals Reversed and Remanded the award of fees and instructed the trial court make detailed findings to support the award of fees.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/busche012012.pdf

In a Protective Supervision Case, Court Not Required to Provide Strict Procedural Due Process
K.D. v. State, In Re C.F., 2012 UT App 10, January 12, 2012

Children were removed by DCFS.  Legal and physical custody were later returned to Father.  The Juvenile Court retained Protective Supervision (PSS) case with the family.  While the PSS case continued, the children were exposed to a domestic violence incident involving Father and Mother.  Based on that incident, the court removed the children and set a hearing on Father’s motion for reunification services.  The juvenile court indicated no other purpose beyond addressing Father’s motion.  At that hearing, the Juvenile Court denied reunification services and at trial, terminated Father’s parental rights.  Father appealed.

The Court of Appeals found that because the court’s jurisdiction had not ended and had not modified the finding of neglect, Father was not entitled to a specific hearing on the permanency goal.  Father had a permanency hearing prior to custody being returned.  The hearing on Father’s motion fulfilled all statutory due process requirements because Father was able to present evidence and challenge the State’s allegations.  Further, because the Court maintained jurisdiction, Father was on notice that the goal for the children and custody of the children could be modified by court without further notice.  Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/AMDJV_kf011212.pdf

Detailed and Unchallenged Expert Testimony is Sufficient Basis for Trial Court Findings

Liston v. Liston, 2011 UT app 433, December 22, 2011

Husband appealed the Decree which found wife’s credit card accounts and Husband investment accounts to be marital property. The trial court further awarded wife a sum of money for her ½ interest in water rights associated with the marital home. Husband Appealed.

Court of Appeals affirmed the trial court’s finding that Wife’s detailed and specific explanation that the credit card expenses were marital expenses was more credible when compared to Husband’s lack of explanation of the credit card expenses.  Indeed, Husband’s testimony that he had no idea of what expenses were on the Credit Cards displayed his ignorance on the issue.

Husband had a sizeable investment account to which he added funds that he claimed were from his mother.  The combined amounts were then placed in an account held solely in Wife’s name, then the entire amount (including Wife’s investments) were transferred into an account held in Husband’s deceased mother’s name.  Upon distribution, the Court described how it determined that Husband original investment in the account along with other token investments and interest thereon was Husband’s separate property. The remainder, including the portion that allegedly came from Husband’s mother, the Court found to be marital.   The Court of Appeals affirmed the trial court based on the trial court’s detailed findings and reliance on the CPA report.

Husband argued that the water rights were resolved in the parties’ partial stipulation.  As part of the stipulation husband was awarded the marital home and water rights “appurtenant thereto.”  An unchallenged expert testified that three of the four shares were not appurtenant to the home, but could be sold separately.  Court affirmed the trial court based on the expert’s unchallenged testimony.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/liston122211.pdf

Trial Court Can: (1) Appoint Special Master and Require Professional Supervision for Exchanges; (2) Require a 3 Hour Minimum Before ROFR; and (3) Adjust Parent-Time Specific that Do Not Exceed Statutory Minimum Parent-Time

Wight v. Wight., 2011 UT App 424, Utah Court of Appeals December 15, 2011

Husband appeals the Decree of divorce on 12 different grounds.  The Court of appeals found that Husband’s appeal failed procedurally on several issues.

THIRD PARTY SUPERVISED EXCHANGES

The Court of appeals affirmed the trial court’s order for the third party supervising agency for parent-time exchanges based on “ample and compelling emotional issues between the parties,” and because the agency had been beneficial to the parties by helping them communicate, and limiting potential emotional issues occurring between the parties at the exchange.

SPECIAL MASTER FOR PARENT-TIME ISSUES

The Court further affirmed the appointment of a special master because based on the record, the parties had agreed to the appointment for the resolution of parent-time disputes. The Court found that Special Masters can be appointed under URCP 53 and are permitted to “do or perform particular acts.”  Further, because the appointment did not limit the parties ability to object to the orders of the special master, the appointment was appropriate under URCP 53.

RIGHT OF FIRST REFUSAL

The Court also affirmed the three hour minimum before the noncustodial parent could provide daycare for the minor children.  The Court of Appeals noted that the statute (§30-3-33(15)) does not give a right to provide day care, it simply states that “parental care is preferred to surrogate care.”

SPECIFIC EXCHANGE TIME

Father argued that the Court exceeded its discretion by ordering that pickup time in the summer midweek parent-time would be at 5:30 when U.C.A. §30-3-35 would allow Father to pick-up the children at 9:00 am.  The Court of Appeals affirmed the specific pick-up times were appropriate because the statute is the minimum schedule and the schedule that the Court imposed allowed for two midweeks and thus exceeded the minimum parent-time requirements and as such did not violate the statute.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/wight121511.pdf

Guardianship Placement May Lead to Change in Home-State of Child.

D.T. and S.T. v. C.M., 2011 UT App 407, Utah Court of Appeals December 1, 2011

Parents of 2 children had given voluntary custody and guardianship of the minor child to their older daughter, Sister.  Sister refused to return the child, and Parents moved the Court to terminate the voluntary guardianship.  The Court granted the motion.  Sister then obtained a protective order on behalf of the minor child and petitioned the Court to terminate parents’ parental rights based on Father’s sexual abuse of Sister and the minor child, and Mother’s facilitation of the abuse.  Parents moved to dismiss the petition to terminate their rights because Tennessee was the child’s home state.  The juvenile court found that, in spite of parents’ argument, Utah was the home state, but was an inconvenient forum.  Tennessee declined jurisdiction.  District Court denied the Motion to Dismiss and terminated Parents’ parental rights.  Parents appealed.

The Court of Appeals found that Utah Sister’s did not engage unjustifiable in conduct by retaining custody of the minor child.  Instead, Utah had jurisdiction because the child resided in Utah from April 2007 until November 2007 at the allowance of Parents.  The Court of Appeals also found that there is no violation of due process in excluding the parties from the jurisdictional conversation in the Court-to Court conversation.   Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/JV_syt120111.pdf

Termination of Parental Rights Must Be in Child’s Best Interests

A.A. v. State of Utah, 2011 UT App. 397, Utah Court of Appeals November 25, 2011

District Court terminated Mother’s (A.A.’s) parental rights based on Mother’s unfitness because of mental illness.  Mother appealed and argued that the termination was not in the child’s best interest.

Mother argued that Daughter does not want to be adopted.  Daughter was having visits with mother and the state argued that such visits were an impediment to Daughter being adopted.  Several adoptive homes were tested, but at the time of trial and continuing during appeal is the fact that the child has no current prospective adoptive home.  While the lack of an adoptive placement does not preclude termination, it is a relevant factor.  Mother and daughter had established a loving relationship.  While Mother could not care for her daughter, the visits with Mother had been an integral part of the setting in which Daughter had flourished.  While Mother admits she is unfit, and generally terminating an unfit parent is in the child’s best interests, this is an exception.  Reversed and Remanded.


Full Decision Available at :http://www.utcourts.gov/opinions/appopin/JV_dra112511.pdf

Unwed Father’s Defective Paternity Action Cannot be Amended After Mother’s Relinquishment

DonJuan v. McDermott, 2011 UT 72, Utah Supreme Court November 22, 2011

DonJuan an unwed father of filed a paternity action in Utah prior to the birth of his child.  Father failed to include a sworn statement in compliance with Utah Code 78B-6-121(3) as required by 78B-6-120.   78B-6-120 also requires strict compliance with the requirements.  When DonJuan was made aware of the defect, he filed an amended petition.  The trial court dismissed the action.  DonJuan appealed.  The Court of Appeals certified the matter to the Supreme Court. 

The Supreme Court found that in spite of DonJuan’s near completion of all the statutory requirements (filed paternity action, filed with vital statistics, even filed in Georgia where the parties were living prior to the child’s birth), DonJuan failed to strictly comply, his pleadings did not include a sworn statement attesting to his ability and willingness and plans to have custody and provide for the minor child.  Because he failed to include such statements, his affidavit did not strictly comply and was properly dismissed.  PKPA and constitutional claims were not preserved in the trial court.

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Donjuan112211.pdf