Family Law Update - March 2018

March 22, 2018

Custody

K.P.S. v. E.J.P., 2018 UT App 5
Utah Court of Appeals
Attorneys: Virginia L. Sudbury; Alison Satterlee; Asa E. Kelley

Summary: The trial court incorrectly gave mother sole custody when guardian ad litem recommended that dad receive primary custody. Also, the trial court failed to rule on several issues that were certified. Remanded.

Holding (Custody Determination): The appellate court agreed with father that the trial court failed to make adequate findings in its award of sole custody to mother and in departure from the GAL’s recommendations. Child had extensive history of self-harm and suicide attempts that mother did not take seriously. In one instance, the child told the therapist she was suicidal, and the therapist told mother to take her to the ER immediately. Mother took her for ice cream and swimming instead. Father did take the therapist’s recommendations seriously and got child into therapy. Mother ignored therapist’s recommendations. Father contacted teachers and had a good plan for child’s education, mother did not. Mother had repeatedly failed to facilitate father’s parent-time. GAL gave very detailed reasons for her recommendation that dad should have primary custody. These recommendations did include the opinion of the child, which is required, but also much more data from the case. The court focused on its distaste for considering the opinions of a thirteen (13) year old. “Whenever custody is contested, the court must provide the necessary supporting factual findings that link the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs.” Sukin v. Sukin, 842 P.2d 922, 925 (Utah Ct. App. 1992); U.C.A. § 30-3-10(1)(a). The best interest shall be considered through the enumerated factors. Id. In this case, the court detailed the status of the parties but failed to provide subsidiary facts to support any of its findings or conclusions and the basis for the custody award was not clear from the record. For example, the court says that the father did not exercise enough parent-time. But the court failed to analyze the barriers to his parent-time, such as the court let the mother move to Idaho. That mother frequently prohibited him from taking his parent-time. That father had to pay for gas and hotel to exercise his parent-time, etc. The court also said that father is “strong willed” but did not analyze what this meant nor how this impacted custody.

Holding (Rejecting GAL’s Recommendation): The court is not bound to accept a recommendation if it is not well founded. However, the court must articulate a legitimate reason for the rejection. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137 (addressing a custody evaluator’s recommendation); Tuckey v. Tuckey, 649 P.2d 88, 91 (Utah 1982) (addressing an evaluation of the Department of Social Services). The court focused soley on the erroneous conclusion that the GAL’s recommendation was based only on the child’s preference. It was not. The GAL presented a detailed evaluation of why she recommended what she did. The child’s preference was but one aspect.

Shuman v. Shuman, 2017 UT App 192
Utah Appellate Court
Attorneys: Theordore R. Weckel, James Hunnicutt, Julie Sagers

Summary: This case discusses custody and property. The property and debt errors were minor and are not discussed here. In regard to custody, it was acceptable for the court to award sole legal and physical custody to mom.

Holding (Custody): This case was close, but the appellant did not marshal the facts to show that the district court’s decision could not have been a reasonable outcome from the facts. The award of sole legal and primary physical for mother is upheld. Of six pages of facts, those that stood out to the court most were: one child preferred to stay with mom and keeping the kids together was important; mom was the primary caregiver during the marriage, mom had put the children’s best interest first and fostered a positive relationship between the children and the father; the father had involved a child in divorce issues and communications against the mother; father had made negative statements about mother to the children; father had cancelled, not shown for, been late dropping off or picking up, or not calendared parent time; and the court had concerns about father’s motives and credibility.

Child Support

Christensen v. Christensen, 2017 UT App 120
Utah Court of Appeals
Attorneys: Randall W. Richards

Summary: In regard to child support, the husband sought modification and the district court refused. The decision was affirmed.

Holding (Credit for Other Expenses): Husband thought his payment of school expenses should absolve him of unpaid child support. The court disagreed. “It is well-established that both parents have an obligation to support their children. A child’s right to that support paramount.” Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985). “This principle applies in the context of school expenses. If child support is inadequate to cover expenses parents wish to incur on behalf of their children, such as private school, extracurricular activities, or…advanced placement tests, there is nothing to prevent parents from agreeing to share such additional expenses in the interest of their children.” Davis v. Davis, 2011 UT App 311, ¶ 15, 263 P.3d 520. “However, these things are not necessities and must generally be budgeted as part of child support if the parties cannot agree otherwise.” Id.

Alimony

Anderson v. Anderson, 2018 UT App 19
Utah Court of Appeals
Attorneys: Rosemond G. Blakelock; Jill L. Coil; Luke A Shaw

Summary: Husband appeals several holdings on a modification. The appellate court finds error when the trial court included retirement savings in the wife’s need calculation because she did not enjoy that need during the marriage. However, the court affirms including the wife’s prospective need for a car payment and health insurance, because alimony need not be based on current expenses. Lastly, the court affirms the attorney fee award of $16,403 for wife.

Holding (Anticipated Expenses v. Actual Expenses): In setting an alimony award, the court must consider three factors: 1) the financial condition and needs of the receiving spouse, 2) the ability of the receiving spouse to produce sufficient income, and 3) the ability of the responding spouse to provide support. Rudman v. Rudman, 812 P.2d 73, 76 (Utah Ct. App. 1991). Further “an award of alimony is intended to help the parties maintain the standard of living established over the course of the marriage rather than the amount that is actually being spent.” Woolums v. Woolums, 2013 UT App 232, ¶ 9, 312 P.3d 939. Standard of living has been defined as “a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances.” Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991). “This court has therefore disavowed the notion that standard of living is determined by actual expenses alone.” Woolums and Howell. “Actual expenses may be necessarily lower than needed to maintain an appropriate standard of living for various reasons, including possibly, lack of income.” Id. Because wife had a car and insurance during the marriage, it was reasonable for her to add those costs to her expenses, even though she presently could not afford them because husband had never properly paid.

Holding (Retirement Savings/Expenses Not Enjoyed During the Marriage): The court exceeded its discretion in allowing wife to include retirement savings in her expenses because these were not enjoyed during the marriage. U.C.A. § 30-3-5(h)(ii) allows the court to address the needs of a spouse that did not exist during the marriage or the time the divorce decree was entered only if “the court finds extenuating circumstances that justify that action.” Retirement accounts may not ordinarily be factored into an alimony determination unless “funds for post-divorce…retirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple’s marital standard of living.” Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 16, 80 P.3d 153. This award is the exception, rather than the rule.” Id.

Holding (Excluding Child Support from Need Analysis): It was acceptable for the court to analyze the wife’s need without taking into consideration the child support she would receive because the court deducted the expenses for the children, keeping it separate. “Child support is a basic and unalienable right vested in the minor.” Reick v. Reick, 652 P.2d 916, 917 (Utah 1982). “It is typically best practice for courts to analyze alimony without factoring in child support obligations.” Dobson v. Dobson, 2012 UT App 393, ¶ 11, 294 P.3d 591. But, treating child support payments as the recipient spouse’s income is permissible where the recipient combines their expenses with those of the children on her financial declaration.” Roberts v. Roberts, 2014 UT App 211, ¶ 17, 335 P.3d 378.

Sandusky v. Sandusky, 2018 UT App 34
Utah Court of Appeals
Attorneys: Elizabeth A. Shaffer; Paul J. Morken; Frank D. Mylar

Summary: Husband and wife were married twenty-three (23) years. They entered into a separation agreement, but after sixteen (16) months, wife brought a divorce case. The separation agreement said that it would be incorporated into any divorce proceedings and that it was fair and reasonable. The trial court did rely on the agreement for most of its determinations but made separate rulings on several issues. The appellate court affirmed the trial court’s decisions.

Holding (Alimony): The separation agreement says that husband will pay $2,000 per month as alimony, or a lump sum of $400,000. He asserts that this was wife’s share of the property settlement. However, the agreement specifically says that the alimony payments are “independent of any division or agreement for the division of property.” This directly contradicts husband. The court was correct in awarding wife $2,000 per month in alimony on top of her property settlement for the duration of the marriage, to wit, twenty-four (24) years.

Scott v. Scott, 2017 UT 66
Utah Court of Appeals
Attorneys: Michael D. Zimmerman; Bart J. Johnsen; Troy L. Booher; Julie J. Nelson; Karra J. Porter; Kristen C. Kiburtz

Summary: The Court holds that a person must still be cohabitating to terminate their alimony. NOTE: this case has been overruled by the statute that was put into place immediately following the holding.

Holding (Cohabitation): The wife and her boyfriend broke up months before the ex-husband filed his motion to terminate her alimony for cohabiting. U.C.A. § 30-3-5(10) stated (before it was amended by the legislature following this holding) “Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” The Court performed standard “plain language” analysis and found that “is” means “is” and does not mean “was.” Therefore, the alimony did not terminate. However, this has been changed because the statute was changed in the legislative session immediately following the holding.

Holding (Proper Terminology): The Supreme Court prefers the word “cohabiting” versus “cohabitating.”

Paulsen v. Paulsen, 2018 UT App 22
Utah Court of Appeals
Attorneys: Matt G. Wadsworth

Summary: This case discusses several factual issues from trial that are not necessarily helpful. However, the court does discuss a modification of alimony award that is helpful.

Holding (Standard of Living in Modification): The proper standard of living to use during a modification is the standard of living at the time of marriage, even if the actual expenses have changed.

Christensen v. Christensen, 2017 UT App 120
Utah Court of Appeals
Attorneys: Randall W. Richards

Summary: Husband brought petition to modify child support and alimony based on Wife’s cohabitation, his retirement, and her receiving pension funds. The Court remanded on the cohabitation analysis. However, on the issue of his retirement, the court properly found that he had retired prematurely, thereby refusing to adjust his income. The court did adjust alimony because of the pension payouts though.

Holding (Cohabitation): The hallmarks of cohabitation for alimony purposes include a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions. Other considerations include, the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities, and whether the couple spends vacations and holidays together. However, whether the couple has a reputation as being married, or hold themselves out as being married, is not a relevant consideration in determining cohabitation for purposes of section 30-3-5(10). The trial court erred in relying on the question of whether Wife “held herself out as married.”

Holding (Premature Retirement/Imputed Income): Husband retired because his friends of similar age were retiring, he had been a school teacher for 32 years already, he was 58 years old, he wanted to be a stay-at-home dad, and he had physical and mental stress from the divorce that prevented him from working. The court properly engaged in an imputation analysis, to wit, whether a party is voluntarily unemployed or underemployed, and, if so, how much income ought to be imputed. Busche v. Busche, 2012 UT App 16, ¶ 13, 272 P.3d 748. A person is voluntarily unemployed or underemployed when he or she intentionally chooses of his or her own free will to become unemployed or underemployed. See Ouk v. Ouk, 2015 UT App 104, ¶ 7, 348 P.3d 751. If income is imputed, the income shall be based “upon employment potential and probable earnings consideration, to the extent known: employment opportunities; work history; occupation qualifications… and prevailing earnings and job availability for persons of similar backgrounds in the community.” UCA § 78B-12-203(8)(b). “Imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Rayner v. Rayner, 2013 UT App 269, ¶ 10, 316 P.3d 455. The court found he was voluntarily unemployed and imputed him to the income he made during the divorce.

Holding (Pension Impact on Alimony): The wife has begun to receive $800 from husband’s pension. The court correctly reduced alimony to account for this change in her need.

Holding (Retroactive Application): The Utah Child Support Act provides that after an installment of child or spousal support falls due, it is “not subject to retroactive modification.” UCA § 78B-12-112(3)(c). However, UCA § 78B-12-112(4) states that the court should apply a modification for any period during which the modification is pending and has been served. Therefore, the court should enter a judgment for corrections back to the date the modification was served. These sections read together state that the court has discretion but not a duty to retroactively apply modification awards.

Rule v. Rule, 2017 UT App 137
Utah Court of Appeals
Attorneys: Edward J. Stone, Suzanne Marelius

Summary: This case clearly explains that the general rule of assessing need at the time of separation should not be deviated from because there is a shortfall. Instead, the full alimony analysis is still required, with the need baseline determined at the time of separation.

Holding (Code and Purpose of Alimony): UCA § 30-3-5(8)(a) gives the statutory factors to follow for alimony. An alimony award should advance, as much as possible, the primary purpose of alimony, which are, 1) to get the parties as close to possible to the same standard of living that existed during the marriage; 2) to equalize the standards of living of each party; and 3) to prevent the recipient spouse from becoming a public charge. “Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.

Holding (Eliminating Certain Needs): The court may lower or eliminate certain claimed needs of a party, but must give a valid reason for doing so. The fact that there is a shortfall is not a valid reason. In this case, the court improperly eliminated categories such as donations, retirement savings, and travel because there was not enough to go around. The court could have lowered these categories or eliminated them if there was insufficient evidence to show that they were true needs during the marriage, but not because there were insufficient funds. Insufficient funds are handled at the end of the analysis, not the beginning.

Holding (Standard at time of trial rather than time of separation): The general rules is that the court should determine the standard of living at the time of marriage, not separation. However, UCA § 30-3-5(8)(e) allows the court to use the time of trial in extenuating circumstances. A shortfall, however, is not an extenuating circumstance. Instead, it is a standard circumstance that is handled at the end of the analysis, once the standard baseline need at the time of marriage has been determined. An extenuating circumstance would be such as a husband’s income doubling since the time of divorce due to training he received during the marriage. See Howell v. Howell, 806 P.2d 1209, 1212 (Utah Ct. App. 1991).

Holding (Proper Procedure for Determining Alimony):
1) Assess the needs of the parties, in light of their marital standard of living.
2) Determine the extent to which the receiving spouse is able to meet her own needs with her own income.
3) If the receiving spouse is unable to meet their own needs, assess whether the payor spouse’s income, after meeting their needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income. This step should be undertaken with an eye towards equalizing the parties’ standards of living only if there is not enough combined ability to maintain both parties at the standard of living they enjoyed during the marriage. This is more an equalization of poverty, rather than an equalization of income. The shortfall should be equitably shared.
4) Once the court determines that a shortfall exists between the parties’ resources and needs, the court has broad discretion in dividing the shortfall and apportioning that burden, so long as the award is equitable and supported by the findings.

Sauer v. Sauer, 2017 UT App 114
Utah Court of Appeals
Attorneys: David Maddox

Summary: The husband appeals the district court decisions stating that the wife did not present enough evidence and therefore the court was forced to accept his evidence as presented and could not infer its own conclusions. The appellate court affirmed and found that the court made reasonable inferences to come to its own conclusions.

Holding (Alimony): The wife stated that her need was much lower than it actually was because she was living off of the charity of her friends. The district court properly increased her need to that of the husband, to find a more reasonable need. Because there was no evidence that was both credible and relevant, the court could impute a reasonable amount based on other evidence provided by the parties. Just because someone is living on a very low budget after a separation, does not mean that is their need. “As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony.” Also, “one of the purposes of alimony is to ensure that divorcing spouses both retain sufficient assets to avoid becoming a public charge.” In this case, the wife’s living was reliant on the charity of friends. Therefore, it was appropriate for the court to consider her unsubsidized needs rather than her actual subsidized expenses.

Chesley v. Chesley, 2017 UT App. 127.
Utah Court of Appeals
Attorneys: David Pedrazas, Mary C. Corporon

Summary: Wife filed for divorce from husband. The trial court entered judgment after a bench trial awarding wife $900 in alimony. Husband appealed.

Holding (Alimony): “The purposes of [an initial alimony award] are (1) to get the parties as close as possible to the same standard of living that existed during the marriage, (2) to equalize the standards of living of each party, and (3) to prevent the recipient spouse from becoming a public charge.” Chesley v. Chesley, 2017 UT App 127, ¶ 10, 402 P.3d 65, 68 (quoting Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (citation and internal quotation marks omitted)). Further, in determining the amount and duration of alimony, trial courts look to least the following factors:

(i) the financial condition and needs of the recipient spouse;
(ii) the recipient’s earning capacity or ability to produce income;
(iii) the ability of the payor spouse to provide support;
(iv) the length of the marriage;
(v) whether the recipient spouse has custody of minor children requiring support;
(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and
(vii) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.
Utah Code Ann. § 30-3-5(8)(a) (LexisNexis 2013). Thus, the Court provided, “we agree with Moriah that the trial court properly considered several of the relevant statutory factors, including Moriah’s earning capacity, the length of the parties’ marriage, and the fact that Moriah had custody of the parties’ two children.” Chesley, 2017 UT App at ¶ 14; see Utah Code Ann. § 30-3-5(8)(a)(ii), (iv), (v). “However, we ultimately conclude that, in considering Moriah’s needs, the trial court failed to make sufficiently detailed findings regarding her demonstrated financial need. Id.
Nicholson v. Nicholson, 2017 UT App 155
Utah Court of Appeals
Attorneys: Samuel M. Barker, Jeffrey A. Callister, Jennifer Neeley

Summary: The district court terminated the wife’s alimony to the husband after she retired because his monthly income exceeded his reasonable monthly needs. Affirmed.

Holding (Alimony): The court goes through the alimony analysis under UCA § 30-3-5(8)(a). Alimony may be modified when the court finds that there has been a substantial material change in circumstances not foreseeable at the time of the divorce. UCA § 30-3-5(8)(a)(i)(i). Once that finding has been made, the court must then consider at least the following factors: 1) the financial condition and needs of the recipient spouse; 2) the recipient’s earning capacity or ability to produce income, 3) the ability of the payor spouse to provide support, and 4) the length of the marriage. These factors apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding. The district court determined that the husband did not have an unmet need. The court did not analyze whether or not the wife had the ability to pay support. However, that was acceptable because alimony could not be awarded if there was not an unmet need.

Holding (Alimony Need Had Not Changed): Even though husband’s unmet need had not changed since the time of the divorce, his alimony could be terminated because he did not have an unmet need and the substantial and material change was based on the retirement of wife, not the change need of the husband.

Holding (Standard of Living): The court rightfully used the standard of living at the time of trial on the modification, rather than the standard of living at the time of separation. UCA § 30-3-5(8)(e) states that the court should look at the standard of living at the time of separation. However, the statute also provides that the court “may, in its discretion, base alimony on the standard of living that existed at the time of trial.” This is the correct method to use for a modification proceeding where the court is seeking to adjust to reflect the changed financial circumstances. Case law agrees that the standard for modification should be at the time of the modification, not separation. Williamson v. Williamson, 1999 UT App 219.

Vanderzon v. Vanderzon, 2017 UT App 150
Utah Court of Appeals
Attorneys: Diana J. Huntsman, Sherri L. Walton, Jason T. Schow, Michael D. Zimmerman, Julie J. Nelson, Clemens A. Landau, David S. Dolowitz, James M. Hunnicutt, Shane A. Marx

Summary: A mother challenges the trial court’s orders regarding custody, alimony, and attorney fees after the final decree of divorce was entered. After the parties separated, the mother moved with the children to Utah while the father stayed in Virginia. Conflicts continued to elevate as the long-distance frustrated the best interests of the children. The three issues above were reserved for trial and the parties spent $1.2 million dollars on litigating the case.

Holding (Alimony): The trial court plainly erred by using the mother’s gross income to calculate her needs while using the father’s net income to assess his ability to provide support. The mother contends that the court erred by imputing too much income to her, calculating alimony based on her gross rather than her net monthly income, failing to equalize the shortfall between the parties, and failing to consider the tax consequences of the mother’s alimony award. “Trial courts have considerable discretion in determining alimony.” ¶ 40. “Alimony determinations require a trial court to consider three factors relevant here: ‘(i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; [and] (iii) the ability of the payor spouse to provide support.’” ¶ 41; Utah Code Ann. § 30-3-5(8)(a)(i)-(iii) (LexisNexis 2013); see also Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 8, 80 P.3d 153. “The court should first assess the needs of the parties, in light of their marital standard of living.” Dobson v. Dobson, 2012 UT App 373, ¶ 22, 294 P.3d 591. “If the recipient spouse is ‘able to meet her own needs with her own income based upon the expenses she reasonably incurred, . . . then it should not award alimony.’” Id. “However, if the court finds that the recipient spouse is not able to meet her own needs, ‘then it [should] assess whether [the payor spouse’s] income, after meeting his needs, is sufficient to make up some or all of the shortfall between [the recipient spouse’s] needs and income.’” ¶42.

Holding (Equalizing Income): “Equalization of income is ‘better described as equalization of poverty’ or, more specifically, as the equalization of ‘shortfall.’” Kidd v. Kidd, 2014 UT App 26, ¶ 26, 321 P.3d 200. This approach is only used “in those situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.” Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173. The “trial court must determine how to equitably allocate the burden of insufficient income that occurs when the resources that were sufficient to cover the expenses of a couple must now be stretched to accommodate the needs of two individuals living separately.” Keyes v. Keyes, 2015 UT App 114, ¶ 39, 351 P.3d 90. “Because both the propriety of and the calculations necessary for equalization are tied to findings regarding the parties’ respective needs and income, a court must conduct an adequate needs analysis to properly equalize shortfall.” ¶ 43; See Dobson, 2012 UT App 373, ¶ 21, 294 P.3d 591; Batty v. Batty, 2006 UT App 506, ¶¶ 4-6, 153 P.3d 827. The Court also “concluded that a court exceeds its discretion by inequitably dividing the shortfall between the parties.” See Keyes, 2015 UT App 114, ¶¶ 38-42, 351 P.3d 90 (holding that the court abused its discretion when its award to the wife left the husband “with essentially no income for basic necessities”). “The purpose of equalization is to ensure that when the parties are unable to maintain the standard of living to which they were accustomed during marriage, the shortfall is equitably shared.” Kidd, 2014 UT App 26, ¶ 26, 321 P.3d 200.

Holding (Tax Consequences): “[A]n equitable alimony award does not necessarily mean that the parties must share burdens in exact mathematical equality.” See Howell v. Howell, 806 P.2d 1209, 1213 n.3 (Utah Ct. App. 1991). Rather, in awarding alimony, the court must “consider all relevant facts and equitable principles.” See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013). The trial court cannot award someone more alimony than their demonstrated need. Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994).
Holding (Imputing Income): For an alimony award, “the trial court is required to consider the recipient spouse’s ‘earning capacity or ability to produce income.’” Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis 2013). A trial court “may impute income to an underemployed spouse.” Fish v. Fish, 2010 UT App 292, ¶ 14, 242 P.3d 787. Income imputation must “be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community.” Utah Code Ann. § 78B-12-203(7)(b). “’If a parent has no recent work history[,] . . . income shall be imputed at least at the federal minimum wage for a 40-hour work week,’ and if greater income is imputed, ‘the judge . . . shall enter specific findings of fact as to the evidentiary basis for the imputation.’” Id. § 78B-12-203(7)(c). However, income cannot be imputed if “the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn.” Id. § 78B-12-203(7)(d)(i).
Modification

Paulsen v. Paulsen, 2018 UT App 22
Utah Court of Appeals
Attorneys: Matt G. Wadsworth

Summary: This case discusses several factual issues from trial that are not necessarily helpful. However, the court does discuss a modification of alimony award that is helpful.

Holding (Foreseeability): The court found that the termination of the wife’s mortgage was foreseeable and should not have supported a modification because she was awarded the property in the divorce and it was known when it would be paid off. Likewise, the wife’s incremental pay increase was also foreseeable and not enough to substantiate a change in circumstances. “Were it otherwise, creeping inflation could necessitate recalculation of nearly all alimony awards on an annual or biennial basis.”

Holding (Standard of Living in Modification): The proper standard of living to use during a modification is the standard of living at the time of marriage, even if the actual expenses have changed.

Nicholson v. Nicholson, 2017 UT App 155
Utah Court of Appeals
Attorneys: Samuel M. Barker, Jeffrey A. Callister, Jennifer Neeley

Summary: The district court terminated the wife’s alimony to the husband after she retired because his monthly income exceeded his reasonable monthly needs. Affirmed.

Holding (Alimony – Res Judicata): The equitable doctrine allows courts to reopen alimony, support, or property distributions if the moving party can demonstrate a substantial change of circumstances. Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App. 1988). And, the statute on modifying alimony requires the court to conduct a full alimony analysis, even if the elements do not have to do with the modification reason for a change in alimony. UCA § 30-3-5(8)(a).

Protective Orders

Jensen v. Ruflin, 2017 UT App 174
Utah Court of Appeals
Attorneys: James C. Lewis

Summary: Ruflin flipped off his brother-in-law, Jensen, as Jensen drove passed. Jensen slammed on his breaks and reversed and went to fight Ruflin. They did fight and Ruflin ended up stabbing Jensen. The next day, Jensen petitioned for a protective order with Commissioner Casey. After a while, Ruflin filed his own petition for protective order with Commissioner Blomquist. Both protective orders were granted. Ruflin objected. Before the objection hearing, Ruflin submitted several amended objections and then hired an attorney six days before the hearing. The attorney asked for a continuance, which was denied. It is not res judicata to bring separate POs for same incident. Mutual protective orders are allowed under the statute when they are filed separately.

Holding (Res Judicata – Claim Preclusion): Jensen’s protective order was not precluded by res judicata because Jensen was not required to present his claims in the first suit. Instead, with protective orders, it is proper to bring competing protective orders in separate suits, and mutual orders in the same suit are not allowed under the statute. In addition, since the petitioner was different in each case, their claims were different and distinct.

Holding (Mutual Protective Orders): The Cohabitant Abuse Act, UCA 78B-7-108, does not allow for mutual protective orders, unless, each party has filed an independent petition against the other for protective order, and both petitions have been served and the elements of protective order have been met.

Holding (Denial of Continuance): The district court did not abuse its discretion in denying the continuance. Ruflin filed his objection a few days late. Then, the Cohabitant Abuse Act, UCA 78B-7-107(1)(f) requires that a hearing on an objection be heard within 20 days. Ruflin failed to request a hearing that could meet that standard. He then complicated his matter by filing several amended objections and not hiring an attorney until six days before the hearing. It was his fault he was not prepared.

Relocation

Holding (Proximity Requirement/Relocation): The lower court did not err in establishing a proximity requirement. The mother argued that the trial court erred when it conditioned the grant of primary custody to her on living within 25 miles of the father’s residence upon moving back to Virginia. The Court held that the mother “has not challenged the proximity requirement on any legal basis other than its constitutionality. As a consequence, we presume that the court’s overall best interests findings—including the proximity requirement—are otherwise supported by the evidence and in accord with applicable law.” ¶ 21. The mother wanted the Court to expand the proximity to living within 45 miles of the father, but “the court’s proximity requirement is more properly seen as an initial determination of the children’s best interests in the context of the imminent relocation to Virginia, subject to modification in light of changing circumstances and aimed at ensuring that the children’s transition to Virginia would be ‘as smooth as possible.’” Id. The trial court merely found that transitioning the children was the most important goal, not the proximity requirement; transition “’must be handled carefully . . . with as little disruption as is possible.’” ¶ 24. After “the entry of the final decree, the court indicated that the proximity requirement was based on what it determined to be the best interests of the children at the time of trial but that it was not intended to rigidly apply if the circumstances on which it was based proved materially different than anticipated, even if brought to light during the transition period.” ¶ 25. Thus, the proximity requirement was merely an “initial matter” to ensure “optimum parental involvement.” ¶ 26.

Personal Property Distribution

Sandusky v. Sandusky, 2018 UT App 34
Utah Court of Appeals
Attorneys: Elizabeth A. Shaffer; Paul J. Morken; Frank D. Mylar

Holding (Fair and Equitable): The court was correct to determine if the agreement was fair and equitable and to adjust it where it was not. “The court need not necessarily abide by the terms of the litigants stipulations, and although such should be respected and given great weight, the court is not duty bound to carry over the terms thereof.” Pearson v. Pearson, 561 p.2d 1080, 1082 (Utah 1977). “Spouse may make binding contracts with each other and arrange their affairs as they see fit, insofar as the negotiations are conducted in good faith and do not unreasonably constrain the court’s equitable and statutory duties.” Reese v. Reese, 1999 UT 75.

Holding (Marital v. Separate Bank Accounts): The agreement said that the wife should keep “checking and savings accounts” and the same for the husband. It did not delineate which accounts would be kept by which spouse. The court found this to be vague and unenforceable. It rightly found that the parties should just split all of the accounts equally. In regard to one specific account, the husband said it was acquired before the marriage and therefore was separate. “Separate property is not totally beyond the court’s reach and may be included as part of the martial estate in three circumstances: when separate property has been comingled; when the other spouse has augmented, maintained, or protected the separate property; and in extraordinary situations when equity so demands.” This court was within its discretion in this case to find that over the lengthy marriage, the wife had helped to augment, maintain, or protect the assets in the account.

Shuman v. Shuman, 2017 UT App 192
Utah Appellate Court
Attorneys: Theodore R. Weckel, Jr.; James M. Hunnicut; Julie J. Sagers

Summary: This case appeals several issues from a divorce trial.

Holding (Preserving an Argument): The husband makes several arguments for property that was not presented to the district court. That property cannot be argued about in the appeal because it was not properly discussed or preserved at trial.

Holding (Discrepancies in Discovery Regarding Estimates): Husband unsuccessfully argues that the court should have used his estimates for property values because the Wife’s estimates had changed during discovery. However, she had explained why they had changed and the determination was largely based on credibility, which the appellate court will not disturb.

Holding (Double Counting an Asset): The Wife included a heat blanket in her property list twice. The issue is remanded to determine if that was a mistake.

DeAvila v. DeAvila, 2017 UT App 146
Utah Court of Appeals
Attorneys: Ben W. Lieberman, Stacy J. McNeil, Eric B. Vogeler, Jenna Hatch

Summary: A wife appealed the trial court’s division of marital assets under a decree of divorce. The trial court awarded three of the vehicles to wife and a boat and one vehicle to husband. The trial court found that because the value of the property awarded to wife was worth more than what was awarded to husband, husband was entitled to the difference in value, so the court gave him a judgment of $8,325. The wife appealed.

Holding (Marital Property/Collateral Source Rule): First, wife argued that the trial court erred when it treated the insurance proceeds from the Lexus as a marital asset and awarded half of the proceeds to Husband. She alternatively argued that even if the Lexus was marital property, Husband was not entitled to a share of the insurance proceeds under the collateral source rule. Second, she argued that the trial court erred when it failed to value the Sector 10 Stock at the market price of five cents per share. District courts have “considerable discretion concerning property distribution [and valuation] in a divorce proceeding and their determinations enjoy a presumption of validity.” DeAvila v. DeAvila, 2017 UT App 146, ¶ 12, 402 P.3d 184, 188. Utah law provides, “marital property will be divided equally while separate property will not be divided at all.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968 (citing Dahl v. Dahl, 2015 UT 79, ¶ 121, ––– P.3d ––––). Utah law also holds that “property acquired during the marriage is marital property subject to equitable distribution.” Dahl, 2015 UT 79, ¶ 26, ––– P.3d ––––. Further, “[m]arital property is ordinarily all property acquired during the marriage …, ‘whenever obtained and from whatever source derived.’ ” Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct. App. 1990) (quoting Gardner v. Gardner, 748 P.2d 1076, 1079 (Utah 1988)). Additionally, “separate property, in contrast, is typically a spouse’s premarital property or property received by gift or inheritance during the marriage.” DeAvila, 2017 UT App at ¶ 15 (quoting Dahl, 2015 UT 79, ¶ 143, ––– P.3d ––––; Kimball v. Kimball, 2009 UT App 233, ¶ 24, 217 P.3d 733). So, the Court “conclude that the trial court acted within the bounds of its discretion when it applied the general presumption—that marital property is all property acquired during the marriage from whatever source derived—to the insurance proceeds of the Lexus.” DeAvila, 2017 UT App at ¶ 17.

Finally, they held that the Collateral source rule did not apply under the circumstances, because “[t]he collateral source rule provides that a wrongdoer is not entitled to have damages, for which he is liable, reduced by proof that the plaintiff has received or will receive compensation or indemnity for the loss from an independent collateral source.” Id. at ¶ 18. The Court reasoned that, “[s]ubsequent Utah case law has identified two policy rationales for the rule. Id. at ¶ 19. “First, public policy favors giving the plaintiff a double recovery rather than allowing a wrongdoer to enjoy reduced liability simply because the plaintiff received compensation from an independent source.” “Second, the rule encourages the maintenance of insurance by assuring that a plaintiff’s payments from a collateral source will not be reduced by a subsequent judgment.” Id.

Holding (Stock Valuation): Wife also argued that the trial court erred in finding the stock value valueless. The Court disagreed with Wife and asserted that “’[w]hen considering testimony regarding valuation of property, the trial court is entitled to give conflicting opinions whatever weight [it] deems appropriate,’ and a trial court’s valuation will be upheld if it is ‘within the range of values established by all the [evidence].’” DeAvila, 2017 UT App at ¶ 22. (Court also noted that there is generally no need for expert testimony when stock is at issue).

Real Property Distribution
Porenta v. Porenta, 2017 UT 78
Utah Supreme Court
Attorneys: Stephen A. Starr; Jennifer P. Lee

Summary: During pendency of divorce case, husband fraudulently transferred ownership of the marital home to his mother. He then died before the case was finalized. The Supreme Court held that this fraudulent transferred needed to be undone and the home restored to the wife. Also, the court reprimanded the attorney involved, Robert Copier, because the mother later transferred the property to him. This case takes a deep dive into the law and this is only a summary that skips much of the legal analysis.

Holding (Impact of Death During Divorce Case): The Supreme Court makes clear that the earlier law on this issue is still the controlling rule and that subsequent inconsistent decisions have been dicta. The rule is “when the death of one of the parties occurs after the entry of the divorce decree and before the decree is final the decree become ineffective to dissolve the marriage, death having terminated that personal relationship. However, the occurrence of death does not abate the action itself and to the extent that property rights are determined by the decree it remains effective and becomes final.” In re Harper’s Estate, 265 P.2d 1005, 1006 (Utah 1954). “The general rule followed in virtually all jurisdictions is that, after one of the spouses dies during a divorce proceeding, and during the time an appeal is pending or during the time when an appeal may be taken, a divorce or dissolution action abates with respect to marital status of the parties but does not abate with respect to property interests affected by the decree.” 27A C.J.S. Divorce § 194 (2017 update). “Conversely, all interlocutory orders that are effective only during litigation abate upon the dismissal of the divorce case.” Furthermore, “claims that survive the death of a party are typically chargeable against that party’s estate.” See Utah R. Civ. P. 25(a)(1). Divorce actions abate at death except as to property rights…because the award is chargeable against the estate. Bridgeman v. Bridgeman, 391 S.E.2d 367, 369 (W.Va. 1990). In the end, the court leaves the trial court’s decision in place, that the wife’s claim against the husband for her joint tenancy in the property extended to his estate, because the issue was inadequately briefed. Therefore, some of the legal analysis continues to be unanswered by the Utah jurisprudence.

Holding (Remedies for the Fraud): Utah Fraudulent Transfer Act, U.C.A. § 25-1-15 has provided that a fraudulent transfer may be void or is voidable, the Act continues to change over time. Section 25-6-9(2) states that the court may authorize money damages when a transfer is voidable, the discretion belongs to the trial court. However, the legislation also allows for an avoidance of the transfer as a remedy as well, to unwind a transfer in bad faith. See U.C.A. § 25-6-8(1)(a). In this case, husband executed a quit claim deed to his mother. Voiding that deed places title back into the name of husband. Because the court holds that the transfer was fraudulent under UFTA, the joint tenancy was never severed with wife. The judgment may be entered upon any subsequent transferee, so long as they did not take the property in good faith. That was the case with the mother and the attorney in this case. Therefore, that transfer is void. If the attorney later sold part of the property to a good faith buyer, it may be that the remedy against that buyer is for damages against mother and the attorney. Note: the UFTA has been renamed Uniform Voidable Transactions Act in 2017.

White v. White, 2017 UT App 140
Utah Court of Appeals
Attorneys: Terry R. Spencer

Summary: The husband was awarded the family LLC that held one property, that he subsequently lived in. Over several years, the wife obtained several unpaid judgments against the husband. She sought a Charging Order against the LLC, which is effectively a lien against the LLC. She then sought to foreclose against the Charging Order. Before the hearing, the husband sold the property. He claimed that the proceeds of the sale were protected from the Charging Order because of the Homestead Exemption. The court disagreed because 1) the homestead exemption does not apply to domestic cases, and 2) because the LLC held the property, not him.

Holding (Homestead Exemption): The court very briefly says that “a homestead exemption doesn’t apply in a domestic case.” See Wiles v. Wiles, 871 P.2d 1026 (Utah Ct. App. 1994). However, the court’s primary focus was on the fact that the LLC held the property, not the husband. “The Act’s plain language limits entitlement to the exemption to a person, not an entity.” However, the court seemed to leave open the possibility that the husband could have shown, but did not show, that an exemption may be possible if a claimant shows an interest in the property beyond simple occupancy.

Custody for Persons Other than Parents

Hearon v. Hansen, 2017 UT App 214
Utah Appellate Court
Attorneys: David S. Head; McKette H. Allred

Summary: Mother was tragically killed in an accident. The children had lived with her and step-father for the previous eight (8) years. He filed a petition under the Utah Custody and Visitation for Persons Other than Parents Act. His petition was denied under Utah R. Civ. P. 12(b)(6). The appellate court reverses and sends the case to trial.

Holding (The Law): The court begins with a discussion of the constitutional aspects to a case like this. Then discusses that U.C.A. § 30-5a-103(2) places a heavy burden of seven requirements that a non-parent must show to argue for parent-time or custody of a child. The first six have to do with the petitioner’s relationship with the child. They are:
a) The person has intentionally assumed the role and obligations of a parent;
b) The person and the child have formed an emotional bond and created a parent-child type relationship;
c) The person contributed emotionally or financially to the child’s wellbeing;
d) Assumption of the parent role is not the result of a financially compensated surrogate care arrangement;
e) Continuation of the relationship between the person and the child would be in the child’s best interests; and
f) Loss or cessation of the relationship between the person and the child would be detrimental to the child.

Holding (First Six Factors): The step-father alleged factors that if proven would satisfy the first six factors. Therefore, they were not enough to dismiss summarily.

Holding (Seventh Factor): The seventh factor is that the legal parent either (a) is absent, or (b) is found by a court to have abused or neglected the child. The question of whether the parent “is absent” is to be determined at the time the petition is filed. “This is not a backward-looking inquiry.” The analysis is the same as the alimony question in Scott v. Scott, 2017 UT 66 ¶ 1 (overturned by subsequent legislative action to change the word “is”). The court recognizes that this is somewhat at odds with an earlier case D.A. v. D.H., 2014 UT App 138, but decides to follow the more recent Scott president. Next, the court turns to the word “absent.” First and foremost, the word means “not present” or “the parent is not present for the purpose of parenting the child.” The inquiry of absent does not include an inquiry of “fit.” The petition does allege facts sufficient to go to the fact finder on whether the father was absent on the date of the filing of the petition. Therefore, the petition should not have been dismissed summarily.

Termination of Parental Rights

Hearon v. Hansen, 2017 UT App 214
Utah Appellate Court
Attorneys: David S. Head; McKette H. Allred

Dicta (Termination): The court suggests in a footnote that the step father may have done better to file a petition to terminate father’s rights. U.C.A. § 78A-6-501 to 515 states that “any interested party…may file a petition for termination of the parent-child relationship with regard to a child.” A court may terminate those rights if it finds, among other things, that the parent has abandoned the child. It is considered prima facie evidence of abandonment if the parent has failed to communicate with the child by mail, telephone, or otherwise for six months. U.C.A. § 78A-6-508(1)(b).

Abuse and Neglect

State In Interest of K.T., 2017 UT 44.
Supreme Court of Utah
Attorneys: Sheleigh A. Harding, Jordan Putnam, Sean D. Reyes, John M. Peterson, Martha Pierce

Summary: This case involves four (4) children. Mother is the biological mother of all four, while Father is biological father of the younger two and stepfather of the older two. The State filed a Verified Petition seeking to adjudicate the children as abused and neglected under Utah Code § 78A-6-105 (2008). After a Preliminary shelter hearing, the juvenile court placed three of the children in the custody of DCFS.

Holding (Abuse and Neglect): “To find abuse under Utah law, a court must find harm.” State In Interest of K.T., 2017 UT 44, ¶ 9. Moreover, Utah Code section 78A-6-105(1)(a) defines “abuse,” as “nonaccidental harm of a child” or “threatened harm of a child.” Id. In the 2008 version of the Utah Code, the parties assert that “harm” means “physical, emotional, or developmental injury or damage.” Id. Moreover, “If, at the adjudication hearing, the [juvenile] court finds, by clear and convincing evidence, that the allegations contained in the petition are true, it shall conduct a dispositional hearing.” Id. In finding abuse and neglect, the lower court relied on State ex rel. C.I., 2009 UT App 141, to reach its decision. This Court, however, asserted that “State ex rel. L.P., on which the per curiam C.I. relies, was not so definitive. Rather, L.P. listed a number of factors that a juvenile court should consider before determining whether a child has been abused within the meaning of the statute. Id. at ¶ 12. Moreover “[s]uch factual findings may include, but are not limited to, the following: … evidence of any bruises, contusions, or abrasions on the child; …[and] evidence of unreasonably cruel punishment such as beatings with a belt … or other object.” Id. “L.P. clarified that “[n]one of the factors listed above is necessarily dispositive…. Instead, these evidentiary factors should guide the juvenile court as it exercises its broad discretion in making [an abuse] determination.” Id. Fiunally the Court asserted “we do not interpret C.I. as imposing a rule that every use of any object to discipline a child constitutes per se abuse. Id. at ¶ 13. Additionally, “the court of appeals relied on additional findings that spoke to the harm C.I. had suffered. For example, the court noted C.I.’s black eye and bruising. Id. If there was evidence of “the effects of the spanking—as in C.I.—the court may have been able to conclude that the children had been harmed. Or, if there had been additional evidence about the particular way that Mother ‘uses a black belt with rhinestones,’ the juvenile court could have inferred the existence of harm. But without such information, the court was presented with two options: improperly speculate about what the spankings and discipline mother administered looked like, or rely on a per se rule that harm occurs any time a child is struck with any object. The juvenile court opted for the per se rule.: Id. at ¶ 14. Thus, the “rule the juvenile court articulated—that ‘[h]itting a child with a belt or strap or another object is abuse’—is overbroad and alters the statutory meaning of “abuse.” Id.; See Utah Code § 78A-6-105(1). “The juvenile court’s per se rule expands the definition of ‘abuse’ to capture the myriad ways a parent might ‘hit a child’ with ‘another object’ that would not actually harm the child. Id. at ¶ 15. Finally, the Parties did not argue a responsible discipline exception under Utah Code § 78A-6-105(1)(b)(i), so the Court did not address it.

Adoption

E.T. v. R.K.B. and K.A.B, 2017 UT 59
Utah Supreme Court
Attorneys: Angilee K. Dakic; Larry S. Jenkins

Summary: This case deals with a birth mother and birth father from South Dakota. Birth mother relinquished rights to child and falsely indicated the wrong man so that he could relinquish for the father. The actual father is a member of a tribe and was never given any notice. The court wrestles with the Indian Child Welfare Act (ICWA), ultimately finding that the father is a “parent” under that Act, and granting him permission to participate on remand.

Holding: The father is a “parent” under ICWA and may participate in the proceedings on remand.

A.R. v. State, 2017 UT App. 109.
Utah Court of Appeals
Attorneys: W. Andrew McCullough, Sean D. Reyes, John M. Peterson, Larry S. Jenkins, Lance D. Rich

Summary: Maternal grandmother appeals the juvenile court’s Findings of Fact and Conclusions of Law and Order that dismissed her Petition for Adoption of the two children at issue.

Holding: This Court affirmed the lower court’s dismissal of the petition. Grandmother made two arguments. First, she claims that juvenile court erred in finding that she did not indicate her interest in being considered as an adoptive placement within 120 days of the shelter hearing. Second, she argued that it was not in the children’s best interest to remove the children from her home and into another adoptive home. The Court said that “[b]ecause Maternal Grandmother did not provide a transcript to support her claims, this court ‘must assume that the findings and conclusions are supported by sufficient evidence.’” A.R. v. State, 2017 UT App 109, ¶ 3, 400 P.3d 1189, 1191. Moreover, the “juvenile court noted that Utah Code section 78B-6-133(9)(c) required the court to weigh the best interest of the children uniformly between petitioners if more than one petitioner satisfied a rebuttable presumption condition. Id. See also Utah Code Ann. § 78B-6-133(9)(c) (LexisNexis Supp. 2016). Additionally, “Utah Code section 78B-6-133(9)(a) provides ‘a rebuttable presumption that it is in the best interest of a child to be placed for adoption with a petitioner’ who satisfies the requirements of the section. Id. at ¶ 9; Utah Code Ann. § 78B-6-133(9)(a) (LexisNexis Supp. 2016). “First, the petition must have fulfilled the requirements of the Utah Adoption Act. Id. “Second, the petitioner must be a person ‘with whom the child has continuously resided for six months.’ Id. “Third, the petitioner must have ‘filed a written statement with the court within 120 days after the day on which the shelter hearing is held, as described in Subsection (8)(a)(iii).’” Id. Also, “subsection 78B-6-133(8)(a)(iii) requires ‘a written statement’ to be filed with the court within 120 days after the shelter hearing ‘(A) requesting immediate placement of the child with the petitioner; and (B) expressing the petitioner’s intention of adopting the child.’” Id.; § 78B-6-133(8)(a)(iii). Because Grandmother did not fulfill her burdens to provide this information, the petition was dismissed.

Child Welfare Proceedings

R.A. v. State of Utah, 2017 UT App 201
Utah Court of Appeals
Attorneys: Joseph Lee Nemelka; Sean D. Reyes; John M. Peterson; Emily I. Iwasaki; Martha Pierce

Summary: Father asserts that the court incorrectly found him unfit and in the best interest to terminate his rights. The appellate court affirmed.

Holding: “Utah law requires a court to make two distinct findings before termination and parent-child relationship.” In re R.A.J., 1999 UT App 329. “First, the court must find that the parent is below some minimum threshold of fitness, such as finding that a parent is unfit or incompetent based on any of the grounds for termination enumerated in Utah Code section 78A-6-507…Second, the court must find that the best interests and welfare of the child are served by terminating the parents’ parental rights. Id. Unmitigated drug use is a reasonable ground to find a parent unfit. Foster mother’s testimony could have been credible, even if she did have a bias in her desire to adopt the child. Her testimony could have been credited in determining the best interest of the child.

Holding (Service Plan): “The court may not terminate the parental rights of parent because the parent has failed to complete the requirements of a child and family plan.” U.C.A. § 78A-6-507(2). Father asserts that he was terminated only because of his non-compliance with the service plan. Although a court’s decision may not be based soley in the failure of the service plan, it can play a part in the calculous of the court. See In re J.T., 2012 UT App 253. Indeed, “failure to comply substantially with a the terms and conditions of a plan…is evidence of failure of parental adjustment.” U.C.A. §78A-6-508(5).

M.T. v. State of Utah, 2017 UT App 202
Utah Court of Appeals
Attorneys: Harini Venkatesan; Sean Reyes; John M. Peterson; Emily I. Iwasaki; Martha Pierce

Summary: Mom appeals from the termination of her parental rights. The appellate court affirms.

Holding (ADA): The ADA applies to the government’s provision of reunification services. See In re K.C., 2015 UT 92, 362 P.3d 1248. And, a claim for ADA may be made at the eleventh hour, such as trial. Id. However, to succeed on the merits of an ADA claim in the context of reunification, the parent must establish that he or she is a “qualified individual with a disability.” Id; also 42 U.S.C. § 12131(2). In this case, the mother did not raise an ADA claim until her closing arguments at trial. She did not explain what her disability was nor provide proof for it. The parent bears the burden of proof to establish an ADA-qualifying disability. And, the ADA does not contain a “reason to know” requirement that would require DCFS to investigate the disability if it were raised, which it was not.

Holding (Unfitness): Mother unsuccessfully argues that she is not unfit. The trial court, to the contrary, summarized her lengthy record as: mother is either unable or unwilling participate in a drug treatment program. She has continued to engage in drug seeking behaviors as evidence by her multiple visits to the emergency room, seeking narcotics and leaving the ER when she is not administered IV narcotics or a prescription for pain medication. Furthermore, mother has fialed to follow up with the recommended medical care following those visits. She also did not start nor complete drug therapy. “Habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child” is an adequate ground to support the court’s decision to terminate. See U.C.A. § 78A-6-507(1)(c).

Holding (Best Interest): U.C.A. § 78A-6-509(1) lists the factors that the court must consider before terminating a non-custodial parent’s rights. The court is directed to consider the physical, mental, and emotional condition and needs of the child. Id. The mother argues that the child’s mood problems could have been caused by removal to a foster family. However, she does not adequately address the cognitive or developmental issues addressed by the court, which improved in foster care. The mother then unsuccessfully argues the bond she had with the child. “A loving relationship between mother and child does not necessarily mean termination is not in the child’s best interest. Rather the existence of such a relationship is one of several factors to be considered.” See In re J.F., 2013 UT App 288.

R.B., v. State of Utah, 2017 UT App 210
Utah Court of Appeals
Attorneys: Scott N. Weight; Sean D. Reyes; Carol L.C. Verdoia; John M. Peterson; Martha Pierce

Summary: Mother appeals protective supervision on several grounds. The appellate court affirms in part and remands in part.

Holding (Protective Supervision – Emotional Abuse): “Protective supervision” is a legal status created by court order following an adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to remain in the minor’s home, and supervision and assistance to correct abuse, neglect, or dependency is provided. U.C.A. § 78A-6-105(41). DCFS supported allegations of abuse pursuant to U.C.A. § 62A-4a-101(41). The two parents had joint custody. There was also a supported finding against father. Mother had been charged with nine (9) counts of custodial interference. The district court ordered protective supervision after a trial in which it found that mother abused one child by slapping her across the face and mother’s “apparent hate and disgust of father.” In regard to emotional abuse, the appellate court agrees with mother that the state failed to show that there was “emotional damage” that amounted to a “serious impairment” to their growth, development, behavior, or psychological functioning. See U.C.A. § 78A-6-105(24)(b). Apparent hate and disgust of the kids’ father was not enough. There was simply no proof of harm. Likewise, the unsupported statement that denial of parent-time is not enough to rise to the level of emotional abuse. The charges of custodial interference had not been adjudicated at the time of the juvenile trial. And, there was no evidence that, even if it were true, that it caused the children to suffer emotional harm. For the court to determine that custodial interference caused emotional harm, there must be specific evidence to support such a conclusion. There was none here.

Holding (Neglect): Even though K.B. was abused, she is not necessarily, then, also neglected. U.C.A. § 78A-6-105(35)(a)(iv) states that neglect is defined, among other things, as “action or inaction causing…a child to be at risk of being neglected or abused because another child in the same home is neglected or abused.” It was correct to place the younger children under this section of neglect because the older child was physically abused. But it was wrong to use circular logic to then say the older child was neglected because the younger children were neglected.

C.C. v. State of Utah, 2017 UT App 237
Utah Court of Appeals
Attorneys: Herbert Wm. Gillespie; Sean D. Reyes; Carol L.C. Verdoia; John M. Peterson; Martha Pierce

Summary: The mother’s rights were terminated, and the appellate court finds that the juvenile court properly held jurisdiction over the case, despite claims that the trial court held jurisdiction.

Holding (Tribal Jurisdiction): The child was moving from home to home and at some points resided within a tribal reservation. The mother agreed to the amended petition that stated that the child was not governed by a tribe. However, later in the proceedings, certain aunts and uncles objected, although they did not properly intervene. This issue is governed by the UCCJEA. U.C.A. § 78B-13-101 to 318. Under that law, “a Utah court has jurisdiction if Utah is the home state of the child on the date of the commencement of the proceedings…The UCCJEA defines ‘home state’ as the state in which a child lived with a parent…for at least six consecutive months immediately before the commencement of a child custody proceeding.” In this case, the mother admitted in the petition, and did not deny on appeal, that the child had lived in Duchesne County, and not on any Indian reservation from the time he was born in 2012 until June 2014, when the case commenced. Therefore, the juvenile court properly had jurisdiction under section 201 of the UCCJEA when the initial determination was made. And then, “once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction.” U.C.A. § 78B-13-207(1). The fact that the child later resided on a reservation does not divest the court of jurisdiction under the UCCJEA.

Holding (Communication Between Courts): Utah R. Civ. P. 100 requires the juvenile and district courts to communicate about pending cases. This rule does not govern Utah cases and out of state cases (which is how tribes are considered). The proper rule for that communication is the UCCJEA, U.C.A. § 78B-13-110(1). That rule says that a court may communicate with another state to sort out jurisdictional issues, but not that it is required to do so. Here, the juvenile court’s decision to decline to contact the tribal court was not an abuse of discretion.

N.P. v. State of Utah, 2017 UT App 197
Utah Court of Appeals
Attorneys: Colleen Coebergh; Sean D. Reyes; Carol L.C. Verdoia; John M. Peterson; Martha Pierce; Virginia L. Sudbury; Alison Satterlee

Summary: The mother appeals the juvenile court’s decision to give father permanent custody and guardianship. She says that she was denied adequate counsel and reasonable accommodation under the ADA.

Holding (Ineffective Assistance): “An indigent person is entitled to appointment of counsel in a child welfare action.” U.C.A. § 78A-6-1111(1)(a). The mother in this case fired her attorneys and then had the third attorney standby. She did not show that she was not adequately provided counsel. Also, she did not show that any correction of a supposed deficiency in counsel would have caused the case to resolve differently.

Holding (ADA Accommodations): The mother did not properly preserve this issue at the trial level.

Attorney Fees

Anderson v. Anderson, 2018 UT App 19
Utah Court of Appeals
Attorneys: Rosemond G. Blakelock; Jill L. Coil; Luke A Shaw

Holding (Attorney Fees): The court must base the award of attorney fees on evidence of the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees. See Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App. 1998); U.C.A. § 30-3-3(1). The award of $16,403 was reasoned on the proper analysis and is affirmed.

Sandusky v. Sandusky, 2018 UT App 34
Utah Court of Appeals
Attorneys: Elizabeth A. Shaffer; Paul J. Morken; Frank D. Mylar

Holding (Attorney Fees): “In Utah attorney fees are awardable only if authorized by statute or by contract.” Dahl v. Dahl, 2015 UT 79; ¶ 168. Utah Code 30-3-3(1) permits a court to award attorney fees and costs to a party in a divorce proceeding to “enable the receiving party to prosecute or defend the action.” The court looks at receiving spouse’s financial need, the payor’s ability to pay, and the reasonableness of the fees. A claim may also be made for fees if a position is frivolous, without merit, or asserted in bad faith. See U.C.A. § 78B-5-825(1). The trial court was affirmed in finding that both parties had enough funds through the distribution of marital assets to cover their own fees.

Porenta v. Porenta, 2017 UT 78
Utah Supreme Court
Attorneys: Stephen A. Starr; Jennifer P. Lee

Holding (Attorney Fees – Bad Faith): The trial court’s award of attorney fees was upheld. Mother’s defenses were brought in bad faith, made with the intention of hindering or delaying restoration of the property to wife or forcing wife to abandon her case because of the legal fees required by mother’s paperwork blizzard for repetitive, baseless, unsupported motions.

Civil Procedure

K.P.S. v. E.J.P., 2018 UT App 5
Utah Court of Appeals
Attorneys: Virginia L. Sudbury; Alison Satterlee; Asa E. Kelley

Holding (Failure to Rule): “Failure to rule on all material issues certified for trial is reversible error,” Vandermeide v. Young, 2013 UT App 31, ¶ 8, 296 P.3d 787, unless the facts in the record are uncontroverted. Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App 188. In this case, the court did fail to rule on several certified issues. Therefore, the issues are reversed and remanded for ruling.

Holyoak v. Morgan, 2018 UT App 3
Utah Court of Appeals
Attorneys: John K. Johnson; Nathan E. Dorsey

Summary: The Respondent objected to a temporary stalking injunction. The court set a hearing, but Respondent did not appear. The court entered the three year stalking injunction. Respondent’s attorney then filed a Rule 60(b) motion stating “he failed to read the notice or celndar the hearing.” The court denied the motion. The appellate court affirmed.

Holding (Rule 60(b)): Morgan’s counsel displayed a “stunning lack of diligence.” He should have read the court’s notice, and if he did not, he should have at least been curious about the hearing, given that the statute requires a hearing to be scheduled within ten (10) days of the request. See U.C.A. § 77-3a-10196)(a). Morgan provided no evidence of any diligence to support his claim of excusable neglect. The motion was properly denied.

Risher III v. Emerson, 2017 UT App 216
Utah Court of Appeals
Attorneys: Eric M. Stott; T. Jake Hinkins; Russell W. Hartvigsen; Edwin S. Jang

Summary: Risher filed a petition for parentage. Mother was awarded sole custody. The case was remanded because of inadequate findings of facts and conclusions of law.

Holding: The trial held a one-day trial and at the end awarded mother sole custody. The court then directed counsel to draft findings of fact and conclusions of law. The father appealed the decisions from trial. The appellate court was forced to reverse and remand because the findings of fact and conclusions of law were not adequate to justify the decisions made. Therefore, when an attorney is asked to prepare these documents, they must include the necessary factors to make sure that the burden is met to uphold the decisions made.

Silva v. Silva, 2017 UT App 125
Utah Court of Appeals
Attorneys: J. Spencer Ball; Shawn D. Turner

Summary: The District Court incorrectly denied a request to vacate default judgment and assessed attorney fees against the movant. The appellate court reversed and remanded. Note, publicizing the notice was not the best alternative method to use and the Plaintiff should have used a method more reasonably calculated to reach her, such as her email or phone.
Holding (60(b)): “A movant is entitled to have a default judgment set aside under 60(b) if 1) the motion is timely; 2) there is a basis for granting relief under one of the subsections of 60(b); and 3) the movant has alleged a meritorious defense. Menzies v. Galetka, 2006 UT 81, ¶ 64, 150 P.3d 480. “The assertion of a separate meritorious defense is generally, but not always, required in a successful 60(b) motion.” Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶ 15, 270 P.3d 456. “The district court lacks personal jurisdiction when there has not been effective service of process, such as by personal service, service by mail, or service by publication.” Cooper v. Dressel, 2016 UT App 246, ¶ 3, 391 P.3d 338. “And judgments entered by a district court lacking personal jurisdiction over the defendant are void.” Id. Rule 60(b)(4) permits the court to relieve a party from a judgment where the judgment is void. “The Due Process Clause of the United States Constitution requires that a plaintiff act diligently and take such steps in attempting to give the defendant actual notice of the proceedings as are reasonably practicable.” Carlson v. Bos, 740 P.2d 1269, 1275 (Utah 1987). The form of notice chosen satisfies this requirement only if it is as reasonably calculated to reach the defendant as any other practicable alternative. Id. It is inadequate for litigants to focus on only one or two sources without also pursuing other leads as to the whereabouts of the party to be served. Husband did try several attempts to serve Wife at her last known address. But he did not try to corroborate with any mutual acquaintances that was still her address. Nor did he try any other method such as emailing her active email accounts or calling her phone. He should have tried the methods “reasonably calculated to reach the defendant” and he did not. The court, therefore, lacked personal jurisdiction and the judgment and attorney fees are void.
Holding (Sheriff Sale): A Sheriff Sale (Execution Sale) is void where the judgment upon which it rested was void. “A void deed carries no title on which a bona fide purchaser may rely.” Bank of America v. Adamson, 2017 UT 2.

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Family Law Update - March 2018

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