Here are Utah family law case summaries for April and May of 2015. Enjoy!
Prenuptial Agreements and Premarital Agreement
Keyes v. Keyes, 2015 UT App 114
Utah Court of Appeals
Attorneys: Charles R. Ahlstrom, Randall W. Richards
Summary: This is a standard divorce case that goes through several interesting issues including an inherited landscaping company, alimony, and a premarital agreement.
Holding (Premarital Agreement): The Husband had inherited a landscaping business before the marriage and the parties signed an agreement that it would remain his after a divorce. The district court refused to enforce the agreement and split the business inventory in half. The appellate court remanded the case back to the district court to determine if the premarital agreement was “fraudulent when executed.”
“Generally, a premarital agreement is enforceable in the same manner as any other contract.” Levin v. Carlton, 2009 UT App 170, ¶ 15, 213 P.3d 884. However, Utah’ Uniform Premarital Agreement Act prohibits enforcement if the agreement was:
fraudulent when executed and, before execution of that agreement, the party against whom enforcement is sought: (i) was not provided a reasonable disclosure of the property or financial obligations of the other party insofar as was possible; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and, (iii) did not have, or reasonably could not have had, and adequate knowledge of the property or financial obligations of the other party. U.C.A. § 30-8-6(1).
It was not enough for the court to find that the three conditions were met. Fraud is the initial condition, and therefore there are four conditions that must be met, including fraud. The court then goes through the standard fraud analysis.
Premarital agreements are held to a higher standard than other contracts because “a party to a premarital agreement is much less likely to critically examine representations made by the other party. The mutual trust between the parties raises an expectation that each party will act in the other’s best interest.”
Gore v. Grant, 2015 UT App 113
Utah Court of Appeals
Attorneys: Lincoln Harris, Zachary E. Peterson, Aaron B. Millar
Summary: Father was a professional basketball player for the NBA. The parties had come to an agreement about a support order. However, after many years, Father was no longer playing in the NBA and wanted a modification of the support order. Also, he had agreed to pay for a house for Mother; however, he now made allegations that she had not maintained it as required by the agreement. The trial court required to her to pay a $1,700 security deposit until the house could be cleaned up. Lastly, there was a question about whether Mother should have been awarded attorney fees.
Holding: This case has a detailed analysis of when contracts can be used to establish child support. The contract in this case incrementally grew the child support and the court said that was fine because it was in excess of the guidelines and therefore presumably in the child’s best interest.
Personal Property
Keyes v. Keyes, 2015 UT App 114
Utah Court of Appeals
Attorneys: Charles R. Ahlstrom, Randall W. Richards
Summary: This is a standard divorce case that goes through several interesting issues including an inherited landscaping company, alimony, and a premarital agreement.
Holding (Business Inventory): The district court’s findings were legally inadequate to justify the decision to split the business inventory. The court found that the business had been purchased prior to the marriage and therefore was separate property. Although there were facts on the record to show that the inventory in the business had become comingled, the court failed to articulate those facts on the record. Therefore, the appellate court could not determine how the court had gone from the business being separate property to the inventory becoming marital. The court must articulate the facts and analysis in the findings.
The court gives the full analysis of separate versus marital property. In addressing the distribution of property, the court must first determine whether the assets in dispute are marital or separate property. Dahl v. Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566. “Marital property is ordinarily all property acquired during the marriage…” Dunn v. Dunn, 802 P.2d 1314, 1317-18. In Utah, marital property is ordinarily divided equally between the divorcing spouses. Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 13, 176 P.3d 476. After identifiying the property as marital, the court must “consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally, assign values to each item of martial property so that a distribution strategy can be implemented, and distribution the marital assets consistent with the strategy. Dahl v. Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566. On the other hand, separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse. Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 13, 176 P.3d 476. Separate property may lose its separate character, however, through comingling or if the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protections of that property. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). In making that assessment, the court looks to a party’s actions as a manifestation of a spouse’s intent to contribute separate property to the marital estate. Dahl v. Dahl, 2015 UT 23, ¶ 143, 345 P.3d 566.
Ouk v. Ouk, 2015 UT App 104
Utah Court of Appeals
Attorneys: Mark L. Shurtleff, Bert L. Dart, Amy Hayes Kennedy
Summary: Husband appealed from the trial court’s decisions on the distribution of property, child support, and attorney fees. The appellate court upheld these awards.
Holding (Dissipating Assets): After an initial showing of apparent dissipation by one party, the burden shift to the other part “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” Parker v. Parker, 2000 UT App 30; 996 P.2d 565. The party who apparently dissipated assets bears the burden “to account for the missing money and demonstrate that it was spend to service or retire marital debt, to pay taxes for which both parties were responsible, to close the gap between income and reasonable living expenses, or for other marital purposes. Id. “If a spouse’s behavior prevents the court from determining the precise amount of dissipated assets, the court should estimate, to the best of its ability, the upper limit of the amount of assets that the spouse may have dissipated.” Rayner v. Rayner, 2013 UT App 269; 316 P.3d 455. In this case, Husband provided an expert that simply said that the $185,000 loan went to the business side of things. In his appeal, Husband unpersuasively asserts that there was no evidence presented that controverted that statement. The appellate court dismissed this assertion because it was his burden to prove that the money was used for marital benefit. In addition, because Husband ran his business hap hardly and routinely used business funds of personal use, he clearly did not show that this had happened. “Husband treated all businesses and business assets as his personal assets and used them at will for his personal use and expenditures, as well as for business purposes; that there had been periods of business mismanagement, lack of effort to organize and properly handle important affairs of his businesses, and excessive spending for personal purposes; and that Husband’s credibility was questionable in regard to marital assets.”
Alimony
Keyes v. Keyes, 2015 UT App 114
Utah Court of Appeals
Attorneys: Charles R. Ahlstrom, Randall W. Richards
Summary: This is a standard divorce case that goes through several interesting issues including an inherited landscaping company, alimony, and a premarital agreement.
Holding:
Holding (Imputing Income – The Evidence): The district court found that wife was unemployed at the time of trial. This was not supported by the evidence, which showed that she had a part-time job. The district court found that wife should be imputed minimum wage, which was inconsistent with the evidence that showed that she had been recently employed making $11.75 per hour. The district court also found that wife could work full-time, which contradicted evidence of her poor health. The district court’s findings were inadequate to justify these decisions. “The findings of fact must show that the court’s judgment or decree follows logically from, and is supported by, the evidence.” Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 13, 80 P.3d 153.
(Imputing Income – The Law): The court goes through the analysis for imputing income. “If income is imputed to a parent, the income shall be based upon employment potential and probable earnings as derived from employmnent opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds.” U.C.A. § 78B-12-203(7)(c) (we use the child support section for alimony as well). “If a parent has no recent work history or a parent’s occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week.” Id.
(Alimony – The Law): Alimony must be supported by adequate findings, carefully addressing the factors in U.C.A. § 30-3-5(8)(a). Mark v. Mark, 2009 UT App 374, ¶¶ 6, 9, 223 P.3d 476. The court then lists the factors.
(Alimony – An Equitable Result): The district court was within its powers to equalize the hardship; however, it inadequately addressed the husband’s ability to meet his basic needs, and therefore raises a concern about the equities of the resolution. See Oliekan v. Oliekan, 2006 UT App 405, ¶ 16, 147 P.3d 464. In this case, the party equalized the deficit, which in theory is correct, but in this case resulted in the husband having no money left over to meet any of his needs. “[A] goal of awarding alimony is to equalize the parties’ standards of living, which requires the court to take into account all relevant facts and equitable principles.” Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117. The court gives several cases of where an unequal income would be allowed, but in this case, the court went too far. There was evidence to demonstrate that perhaps husband had a higher earning power than that explained in the findings of fact. Therefore, the appellate court remanded to allow the district court to make adequate findings of income that would justify the award.
Termination of Parental Rights
State ex rel. A.T., 2015 UT 41
Utah Supreme Court
Attorneys: Martin N. Olsen, Dixie A. Jackson, D. Grant Dickinson, Sean D. Reyes, John M. Peterson
Summary: The guardian ad litem challenged the appellate court’s opinion that a juvenile court is required to order reunification services to an incarcerated parent.
Holding: If a child’s primary permanency goal does not contemplate reunification with a parent, the court need not order reunification services for that parent.
Child Support
Ouk v. Ouk, 2015 UT App 104
Utah Court of Appeals
Attorneys: Mark L. Shurtleff, Bert L. Dart, Amy Hayes Kennedy
Summary: Husband appealed from the trial court’s decisions on the distribution of property, child support, and attorney fees. The appellate court upheld these awards.
Holding (Child Support-Business Expenses): When a parent is self-employed or operates a business “gross income…shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts.” U.C.A. § 78B-12-203(4)(a). “Only those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.” Id. The person claiming business expenses must prove that those expenses are necessary to allow the business to operate at a reasonable level.” See Barrani v. Barrani, 334 P.3d 994. The husband incorrectly wants the court to deduct household expenses such as mortgage, food, utilities, etc. This, of course, is not allowed. The husband failed to show that these expenses were legitimate business expenses and that they were necessary to allow his business to operate at a reasonable level.
Holding (Child Support-Imputed Income/Deceitful Reporting of Income): The husband claims that the court failed to find that he was underemployed before turning to an imputation analysis. However, the appellate court explains that the trial court did not find him underemployed nor did it impute income. Instead, the court found him to be deceitful about his current income due to the inconclusive and unreliable documentation of current income he had filed with the court. Therefore, it was proper for the court to take the previous three years and average them to find Husband’s income. The court does go through the imputation analysis in dicta stating: “the imputation analysis…involves determining whether the spouse is voluntarily unemployed or underemployed and, if so, how much income ought to be imputed.” Rayner v. Rayner, 316 P.3d 455. “A person is voluntarily unemployed or under employed when he or she intentionally chooses of his or her own free will to become unemployed or under employed.” Id.
Gore v. Grant, 2015 UT App 113
Utah Court of Appeals
Attorneys: Lincoln Harris, Zachary E. Peterson, Aaron B. Millar
Summary: Father was a professional basketball player for the NBA. The parties had come to an agreement about a support order. However, after many years, Father was no longer playing in the NBA and wanted a modification of the support order. Also, he had agreed to pay for a house for Mother; however, he now made allegations that she had not maintained it as required by the agreement. The trial court required to her to pay a $1,700 security deposit until the house could be cleaned up. Lastly, there was a question about whether Mother should have been awarded attorney fees.
Holding (Private Contracts Regarding Child Support): This case spends several pages explaining when it is legal for parents to enter into a contract about child support that deviates from the guidelines. Refer to the opinion for the detailed legal analysis. In summary, “a stipulated amount for child support…is adequate under the guidelines if the…amount equals or exceeds the base child support award required by the guidelines.” U.C.A. § 78B-12-201(4).
Holding (Rebutting Child Support Guidelines): The child support guidelines are rebuttable if their implementation would be unjust, inappropriate, or not in the best interest of the child in a particular case. U.C.A. § 78B-12-210(2)(a), (3). Once rebutted, the court should take into account many factors when determining child support. A list of the factors is found at U.C.A. § 78B-12-202(3). In this case, the decision to lower child support to the support guidelines was overturned because it relied solely upon Father’s past income in comparison to his current income. The appellate court remanded for a full review of the factors, including the fact that the parties entered into the contract with the understanding that Father would not play professional basketball during the entire period of the support contract, that he had earned large sums earlier that could have been saved, and that he had substantial assets that could be leveraged to meet the need.
Holding (Security Deposit): The district court was within its discretion “to fashion appropriate child support orders” when it ordered that Mother pay a $1,700 security deposit on the home that Father purchased for Mother and Child to live in until Child turned eighteen (18). See Diener v. Diener, 2004 UT App 314; 98 P.3d 1178. The possession of the home would revert to Father, and he was entitled to have it cleaned and repaired.
In celebration of your willingness to read such a nerdy blog, below is a photo of Mr. Horace Grant, enjoy:
Attorney Fees
Ouk v. Ouk, 2015 UT App 104
Utah Court of Appeals
Attorneys: Mark L. Shurtleff, Bert L. Dart, Amy Hayes Kennedy
Summary: Husband appealed from the trial court’s decisions on the distribution of property, child support, and attorney fees. The appellate court upheld these awards.
Holding (Attorney Fees): The trial court awarded Wife $95,000 in attorney fees and costs, which was upheld by the appellate court. “A trial court in a divorce proceeding may order a party to pay the costs and attorney fees…of the other party to enable to other party to prosecute or defend the action.” U.C.A. § 30-3-3(1). The award or denial of attorney fees must be based on (1) evidence of financial need of the receiving spouse, (2) the ability of the other spouse to pay, and (3) the reasonableness of the requested fees. See Oliekan v. Oliekan, 2006 UT App 405; 147 P.3d 464. In this case, Husband’s claims that he was destitute did not match up with the evidence that showed that he had millions of dollars in business assets just months before trial. He did not adequately explain where those assets went to cause him to be destitute at the time of trial.
Holding (Attorney Fees on Appeal): Wife’s attorney fees at appeal were also granted because “generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will be awarded to that party on appeal.” Stonehocker v. Stonehocker, 2008 UT App 11; 176 P.3d 479.
Gore v. Grant, 2015 UT App 113
Utah Court of Appeals
Attorneys: Lincoln Harris, Zachary E. Peterson, Aaron B. Millar
Summary: Father was a professional basketball player for the NBA. The parties had come to an agreement about a support order. However, after many years, Father was no longer playing in the NBA and wanted a modification of the support order. Also, he had agreed to pay for a house for Mother; however, he now made allegations that she had not maintained it as required by the agreement. The trial court required to her to pay a $1,700 security deposit until the house could be cleaned up. Lastly, there was a question about whether Mother should have been awarded attorney fees.
Holding: U.C.A. § 30-3-3 authorizes a district court to award attorney fees in any action to establish or enforce an order of child support. There are two (2) different tests for each type of action. In an establishment proceeding, the court must assess (1) financial need of the receiving party, (2) the payer party’s ability to pay, and (3) the reasonableness of the requested fees. Connell v. Connell, 2010 UT App 139; 233 P.3d 836. When it is an enforcement proceeding, the guiding factor is whether the party seeking an award of fees substantially prevailed on the claim. Id. An order to show cause is an enforcement proceeding and a modification of child support is an establishment proceeding. Busche v. Busche, 2012 UT App 16; 272 P.3d 748. A party need not obtain contempt to have prevailed, instead, a judgment is also considered prevailing. Olsen v. Lund, 2010 UT App 353; 246 P.3d 521.
Holding (Attorney Fees for the Appeal): Attorney fees for the appeal are denied because Mother has not asserted a basis or provided any reasoned analysis for awarding them. Utah R. App. P. 24(a)(9) requires a party requesting attorney fees on appeal to “state the request explicitly and set forth the legal basis for such an award.”
Adoption
In re Adoption of J.M.S., 2015 UT 35
Utah Supreme Court
Attorneys: Wesley D. Hutchins, Larry S. Jenkins, Lance D. Rich, William C. Duncan
Summary: Biological father was 18 years old when he conceived the child with the mother who was 14 years old. She came to Utah to have the child adopted. He contested the adoption. The question was whether U.C.A. § 78B-6-111 forbid a biological father from disputing an adoption when the sexual offense at issue took place out of state. This case held that a sexual offense outside of Utah does not deprive a biological father of his rights, despite U.C.A. § 78B-6-111, which forbids a biological father from challenging an adoption when his child was conceived as a result of conduct that would constitute any sexual offense.
Holding: Resolved on the basis of Nevares v. M.L.S., 2015 UT 34; 345 P.3d 719. The sexual offenses in section 111 do not encompass activities outside of Utah involving non-Utahns.
Nevares v. M.L.S et al., 2015 UT 34; 345 P.3d 719
Utah Supreme Court
Attorneys: Joshua K. Peterman, Larry S. Jenkins, Lance D. Rich, William C. Duncan
Summary: The child was conceived in Colorado. Father asserted his rights in Colorado but not in Utah. Mother came to Utah to give birth to the child without the father’s knowledge. There are also allegations that the child was conceived through criminal activity in Colorado.
Holding (Notice Requirements): U.C.A. § 78B-6-111 merely requires Father to fulfill the requirements of Colorado law to protect his interest as a father.
Holding (Criminal Activity): U.C.A. § 78B-6-111, which forecloses parental rights if conception was a result of criminal activity, does not apply to sexual activity between non-Utahns outside of Utah.
