The case law update gives important information on relocation, custody, civil procedure, attorney fees, and retirement. Enjoy!

Legal-Services-

Custody

Brown v. Babbitt, 2015 UT App 291

Utah Court of Appeals

Attorneys: Terry R. Spencer; J. Preston Stieff

Summary: A father who received less than minimum parent-time had his parent-time reduced even further because of his failures to attend therapy properly. Affirmed.

Holdings: After the trial the father received less than minimum parent-time and it was supervised. That decision was appealed and upheld. The father then attempted to modify the parent-time at the trial level. The trial court asked to see proof of the therapy that he said he had completed pursuant to the decree. He provided records of therapy that took place before the decree was even signed. The court then lowered his visitation even further. The appellate court upheld this decision based on his failure to abide by the therapy provisions of the decree.

Note: This is the second time this case came up for appeal. In the first, the appellate court upheld a ruling to grant the father less than minimum parent-time and to have it be supervised. See Brown v. Babbitt, 2015 UT App 161.

 

Real Property

Osborne v. Osborne, 2016 UT App 299

Utah Court of Appeals

Attorneys: Chad C. Shattuck; D. Grant Dickinson

Summary: Husband appeals a decision on real property, personal property, and alimony. The appellate court affirmed some and remanded some.

Holding (Tax Value of the Home): In the absence of an appraisal, the court properly relied on a tax valuation from 2013 in valuing the home, despite the husband’s testimony that it was low. The court was not required to order an appraisal on the home.

Holding (Equity): The trial court improperly used the original mortgage amount, rather than the current amount owed in calculating the equity. Reversed and remanded.

 

Attorney Fees

Robinson v Robinson, 2016 UT App 32

Utah Court of Appeals

Attorneys: F. Kevin Bond, Budge W. Call, Dean C. Andreasen, Diana L. Telfer

Summary: This case involved a stipulation and decree that required the sell of property and distribution of equity. The Husband did not properly perform, so he was held in contempt. Affirmed.

Holding (Attorney Fees): The court affirms the decision to award wife attorney fees. U.C.A. § 30-3-3 “creates two classes of attorney fees-those incurred in establishing court orders and those incurred in enforcing court orders.” “Fees awarded in the first class must be based on the usual factors of need, ability to pay, and reasonableness.” “By contrast, in awarding fees in the second class, the court may disregard the financial need of the moving party.” In this case, there was a third reason for fees, that of a contractual basis. The stipulation stated that “the prevailing party to an action for breach of a term of this agreement shall be entitled to his or her attorney fees and costs.”

 

Relocation

Pingree v. Pingree, 2015 UT App 302

Utah Court of Appeals

Attorneys: Steve S. Christensen; Thomas J. Burns; Joshua D. Chandler

Summary: The court affirms the trial court’s decision to deny mother’s request to relocate with the minor child.

Holding (Best Interest Analysis): Pursuant to U.C.A. § 30-3-37, the court was required to first determine whether relocating was in the child’s best interest. Then, if the court determined that it was not, the court was permitted to order a change of custody if mother relocated. The court conducted the best interest analysis and found the following factors to go against relocation: the child has lived in Salt Lake her whole life; she has family; she has school; she has social contacts; she has continuity. The appellate court then also looked at the findings of the commissioner stating that when a court upholds the findings of the commissioner, the court may adopt those findings without redrafting its own findings. See Veysey v. Veysey, 339 P.3d 131. The court and the commissioner looked at the relative strength of the child’s bond with the parents, the general interest in continuing a previously determined custody arrangement where the child is happy and well-adjusted, the ability to provide personal rather than surrogate care. The court also negatively factored the mother’s ability to co-parent stating that “mother’s behavior demonstrated that she did not fully understand or accept the importance of that relationship as evidenced by her insistence in trying to limit father’s parent time to the minimum statutory schedule, by her refusal to give father the opportunity to care for the child when she was not available, and her ongoing instance on her right to physically separate the child from the father.

Holding (Previous Agreement to Not Relocate): This case is unique because the mother had negotiated this result. In fact, in the final settlement agreement, she accepted five years of non-modifiable alimony in exchange for turning down residency in another state. Less than a month later, she filed her petition to modify so she could move for residency. The fact that mother had just completed medical school before the agreement meant that her need for residency was contemplated at the time of the agreement and should have been handled in the parenting plan. U.C.A. § 30-3-10.9(1)(c), (2), explains that one objective of a parenting plan is to provide for the child’s changing needs as the child grows and matures in a way that minimizes the need for future modifications and the parenting plan shall contain dispute resolution procedures.

Holding (Conditional Change of Custody): Under U.C.A. § 30-3-37(4), if a court determines that relocation is not in a child’s best interest, it then has authority to order a change in custody if a custodial parent chooses to relocate. The statute does not require a separate analysis of whether the change would be in the child’s best interest. Instead, under the relocation statute, as opposed to the modification statute, the best interest analysis is conducted at the level of whether or not the relocation is in the child’s best interest. Once it is determined to not be, a change of custody is necessary if relocation occurs. See in contrast, Hudema v. Carpenter, 989 P.2d 491 (where a mother who had already relocated was able to keep custody because the court needed to find a compelling interest for a change when a child is thriving under a particular arrangement).

 

Robertson v. Robertson, 2016 UT App 55

Utah Court of Appeals

Attorneys: John M. Webster, Kenji Kawa, Rachael Robertson

Summary: In a very close case, the trial court allowed mother to move with the children. Affirmed.

Holding: The trial court found that the parents had an equal bond with the children. The factors that weighed in favor of the relocation were that the mother had slightly higher moral standards because she was married to her live in partner, where dad was not; she had a slightly better ability to encourage the relationship with their father; her physical living standards were slightly higher; she could provide personal care rather than surrogate care; she had historically been the primary caregiver; dad actually took 42% of the overnights, although the decree awarded him less. The factors that weighed against relocation were that they had more family in Utah and the kids had more space at dad’s house. In regards to their abilities to encourage a relationship with their other parent, the court held it against the father that he refused to consider relocation. In best interest analysis, the court has discretion to weigh different factors as it seems appropriate. The court ultimately found that there was greater risk associated with the children not living primarily with their mother than the risk associated with relocation.

Holding (Relocation Notice): The father argued that the notice should have told him where she was relocating and with whom. The appellate court reads the statute narrowly and finds that those elements are not required in the notice.

 

Alimony

Scott v. Scott, 2016 UT App 31

Utah Court of Appeals

Attorneys: Julie J. Nelson, Bar J. Johnsen, Melissa M. Bean, Karra J. Porter, Kristen C. Kiburtz

Summary: The court explains exactly how to determine if the cohabitation rule has been met. It cites to many of the cases for cohabitation.

Holding (Cohabitation): 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 cohabiting with another person. U.C.A. § 30-3-5(10). “Cohabitation occurs when a couple establishes a common residency and engages in a relatively permanent sexual relationship akin to that generally existing between husband and wife.” See Myers II, 2011 UT 65; quoting Haddow v. Haddow, 707 P.2d 669, 672-73 (Utah 1985); Levin v. Carlton-Levin, 2014 UT App 3 (explaining that cohabitation involves living together and being sexually intimate under circumstances akin to marriage). “Common residency is not a sojourn, nor a habit of visiting, nor even remaining with for a time; the term implies continuity” “The phrase requires that the parties establish a common abode that both parties consider their principal domicile for more than a temporary or brief period of time.” Id.

  • Established a Common Abode

It was not until the couple actually moved into their shared residence together that cohabitation began. Although “the sharing of household expenses and keeping of clothing and other personal items in a joint location are indicators of commons residence. ” Sigg v. Sigg, 905 P.2d 908, 918 (Utah Ct. App. 1995). However, in this case, it was not all that was required. For example, frequent and long trips together was not enough. Storage of wife’s personal items at boyfriend’s vacation homes was not enough. Making plans to move in together was not enough.

  • Principal Domicile

The legislature did not intend the residency component of cohabitation to be so rigid as to be satisfied only if each member of the couple intends their common residence to be his or her sole and permanent residence. The court should look to see if it is the principal or primary residence. See Haddow v. Haddow, 707 P.2d 669 (Utah 1985). This does not mean that one of them cannot have a second home. In Sigg v. Sigg, 905 P.2d 908 (Utah Ct. App. 1995), the court found that they shared a principal domicile even though they lived in separate units at the same condominium because they ate together, shared expenses, kept clothing n the same condo, and otherwise lived as if they were married. Even though the couple maintained two residences, they essentially lived together in the two homes. It was a similar sitatuion in Levin v. Carlton-Leven, 2014 UT App 3, 318 P.3d 1177. In Lilly v. Lilly, 2011 UT App 53, 250 P.3d 994, the court defined residence as the place where one actually lives. The courts need not look at other areas of law to define “domicile.” The court should focus on the nature of the couple’s living arrangements as it reflects the individual’s commitment to each other, not on things like government benefits, voting rights, or other reasons for living somewhere.

  • More than a Temporary or Brief Period of Time

“Temporary focuses more on the couple’s state of mind-that is, whether moving in together is motivated or accompanied by a desire to operate as a couple for the foreseeable future or is simply an expedient arrangement with no enduring qualify – while “brief” refers to the duration of the stay.” In Knuteson v. Knuteson, 619 P.2d 1387 (Utah 1980), the wife moved in with her neighbor for two months while husband wasn’t paying alimony. Once he started paying alimony again, and she could afford it, she moved out. During the brief stay, her and the neighbor had sex. But this was not enough to establish this element. The relationship in Scott was nothing like the Knutson relationship. In this case, they bought the home in California to live together.

Holding (Co-habitation terminated): Alimony will still be cut off, even if the cohabitation has ended by the time the decision is made. In this case, they purchased the home in California and started cohabitating, but then broke up. The alimony still ends when they started cohabitating.

 

Earhart v. Earhart, 2015 UT App 308

Utah Court of Appeals

Attorneys: Brian E. Arnold; Lauren Schultz; Andrew W. Gilliland

Summary: Husband’s self-employed income went from $264,000 to $180,000 per year because he lost a large client and had to change his own duties. The court finds that it was appropriate to lower his alimony from $4,000 to $3,000 and his child support from $3,200 to $2,348.

Holding (Voluntary Under Employment): “Utah courts have long recognized that ‘voluntary impoverishment is not ground for reduction of alimony.” Callister v. Callister, 261 P.2d 944, 949 (Utah 1953). However, even though husband’s billable rate had not changed, he did lose a large client that made it impossible for him to continue to bring in $22,000 per month, and the company records reflected the loss. This change was credible and unforeseeable at the time of the decree, and that the change was not temporary in nature.

Holding (Modifying Real Property vs. Personal Property vs. a Contract Obligation): The court affirmed the lower court’s decision to delete the requirement that husband continue to pay the wife’s car lease. This case is not like real property modifications, which require compelling reasons to modify. See Land v. Land, 605 P.2d 1248, 1251 (Utah 1980); Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981). This case is not even analogous to personal property divisions, because it deals with a car lease. It is, therefore, a contract obligation. The court does not give the standard for personal property or contract modifications. The court seems to find that husband’s diminished income would meet the compelling test, and affirms on that grounds.

 

Osborne v. Osborne, 2016 UT App 299

Utah Court of Appeals

Attorneys: Chad C. Shattuck; D. Grant Dickinson

Summary: Husband appeals a decision on real property, personal property, and alimony. The appellate court affirmed some and remanded some.

Holding (Her Ability to Earn More): U.C.A. § 30-3-5(8)(a) sets forth the factors trial courts must consider in fashioning an alimony award. Among other things, the court must consider the recipient’s earning capacity or ability to produce income and the ability of the payor spouse to provide support. Although wife had historically worked two jobs during the marriage, and had dropped down to one job before the divorce, the court was affirmed in imputing her to a 36-hour workweek. First, there was not enough evidence at trial that she did historically have two jobs. Second, she had primary custody of the child. “The recipient spouse’s earning capacity may be affected by the custody of children.” See Endrody v. Endrody, 914 P.2d 1166, 1170, 1172 (Utah Ct. App. 1996).

Holding (Reduction of His Expenses): In determining husband’s ability to pay alimony, the court properly adjusted his expenses from his financial declaration. In his financial declaration, father had his health care expenses listed as $150, but then had a note that they were actually $300. He calculated them at $150. When the court adjusted his budget and then calculated his health care expenses at $150, it was not error because it was the same calculation that he had done as well. Regarding dog care expenses, the court was within its broad discretion to omit $100 in expenses because the court had found that it had to equalize the parties’ standard of living given its finding that the parties could not afford a divorce. See Woolums v. Woolums, 312 P.3d 939.

 

Modification

Zavala v. Zavala, 2016 UT App 6

Utah Court of Appeals

Attorneys: David C. Blum; David Pedrazas

Summary: The parties had 7/7 custody. Both petitioned to modify. The court granted mother’s petition, giving her 9/5. Father appealed. The decision was affirmed on appeal.

Holding (Adjudicated vs. Stipulated): The party seeking to modify must demonstrate (1) than since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody. When custody decrees are not adjudicated, the res judicata policy underlying the changed-circumstances rule is at a particularly law ebb. See Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989). Woodward v. LaFranca seemed to say that when a case is not adjudicated, the court need not find a substantial change in material circumstances. The Zavala court clarifies that the requirement of changed circumstance is statutory and the court cannot waive it. However, in a non-adjudicated case, the issue is not being re-determined, instead it is being decided for the first time. Therefore, a lesser showing will support modifying a stipulated award. The court must always give priority to the best interest of the child, although, the best interest analysis cannot circumvent the change in circumstance test completely. To the extent that Woodward in inconsistent with Zavala or Elmer, it is “disavowed.”

Holding (Invited Error Doctrine): Both parties filed petitions to modify alleging changes in circumstances. Because father had alleged changed circumstances, he waived his argument that no change had occurred.

Holding (Pre-Decree Facts in Modification): The relevant statutes invite the Court to analyze past conduct, past and present ability to cooperate, and any history of…child abuse. Therefore, the statutes clearly allow for past conduct, from before the decree was entered, in the best interest analysis of a modification.  The same is true for the change in circumstance analysis, which necessarily compares past facts to new facts.

Holding (Facts Support the Change): The custody award in favor of the mother was affirmed because of the following facts: mother has been a more-or-less full-time caregiver; mother has greater ability to provide parental care over surrogate care; father relied exclusively on surrogate care during the week; father failed to list mother as emergency contact at day-care; father cut off all telephone communication between the child and mother for 3-6 months; father posted a comment about being hung over on Christmas when the child was in his care; and mother had moved and so the child now went to school 43 miles from father. The fact that mother had moved twice in seven months was not enough to overcome the facts against the father.

Holding (Custody Factors): The factors listed in 4-903 are for the evaluator to consider, not the necessarily the court. The Court has discretion to look at the lists of factors in 4-903, U.C.A. § 30-3-10 and 10.2(2), and Hutchinson; however, it has the discretion as to analysis the facts before the court and to give each factor different weight. The court may look at the Hutchinson factors, but is not required to. The factors that are considered must be “articulable and articulated,” which they were in this case. In addition, the objection was not well preserved because it was a blanket objection that the court failed to consider the 4-903 factors. The objection should have specifically listed which factors were not considered.

Holding (Rejecting Custody Evaluator Recommendation: Dr. Todd Dunn had recommended that the child be placed with the father 9/5. The court rejected this and did the opposite in placing the child with mother 9/5. “Although a district court is not bound to accept a custody evaluator’s recommendation, the court is expected to articulate some reason for rejecting that recommendation.” R.B. v. L.B, 339 P.3d 137. The findings left no doubt why the court rejected the recommendation. Dr. Dunn analyzed text messages between the parties without allowing mother the opportunity to explain or rebut them and without including all of father’s corresponding text messages; he supplied information to father that he withheld from mother; he failed to assess the step-parent’s role in child care; and failed to consider father’s alcohol use.

Holding (Evaluator Costs): It was proper to require father to pay the full cost of the court appointed evaluator because his income was nearly three times that of mother’s, she was a stay-at-home mother. The award of costs was equitable.

 

 Protective Order

Meyer v. Aposhian, 2016 UT App 47

Utah Court of Appeals

Attorneys: Mitchell J. Olsen, Beau J. Olsen, J. Morgan Philpot

Summary: The district court denied the ex-wife’s protective order. Affirmed.

Holding: Aposhian came to watch Meyer teaching tennis, he drove his large military style truck through her neighborhood blaring the horn loudly and using her driveway aggressively, Aposhian said to Meyer’s new husband “[I’ll] bury you, I’ll end you,” Aposhian came back to the house agitated and was arrested, and Meyer’s husband received a stalking injunction. Judge Stone denied her protective order stating that Aposhian’s actions may have been upsetting, intimidating, and annoying, but they did not rise to the level of significant emotional distress. The rule for protective orders comes from U.C.A. § 78B-7-103, and states that, 1) a cohabitant, 2) who has been subjected to abuse or domestic violence, or to whom there is substantial likelihood of abuse or domestic violence. The Act incorporates the definition of “domestic violence” from U.C.A. § 77-36-1. That definition of domestic violence includes the “commission or attempt to commit,…by one cohabitant against another…stalking. Emotional distress is determined on a reasonable person standard, an “individualized objective standard.” The analysis should take all of the facts and view them as a whole. This case did not involve any physical violence or threats there of.

 

Retirement

Granger v. Granger, 2016 UT App 67

Utah Court of Appeals

Attorneys: David Pedrazas, Melissa M. Bean, Martin N. Olsen

Summary: This case looks into issues of the Woodward formula on a 401k, contract laws in regards to divorces, and attorney fees.

Holding (401k Division): The parties agreed to divided the 401k using the Woodward formula, but they did not agree on what that would be. The Woodward case dealt with a defined benefit plan, where the amount could not be determined until he retired. In this case, however, the court is dealing with a 401k, which is a defined contribution plan, where the amounts put into the account were readily ascertainable. The fact that both attorneys repeatedly said they wanted the retirement divided by the Woodward formula did not create a binding contract because both provided different calculations, none of which comported with Woodward, which was impossible because this case is a defined contribution plan not a defined benefit plan like Woodward. Therefore, there was no meeting of the minds in saying “Woodward.” The court agrees that the wife’s calculation is more equitable and remands. That calculation takes the actual amount of premarital contribution, subtracts it from the amount at the time of the divorce, and then divides it in half. The husband’s calculation, which the court rejected, took the total of the account at the time of divorce, divided that figure by two, multiplied the result by the number of years the parties were married, and then divided that result by the number of years husband had worked.

 

Contempt and Orders to Show Cause

Robinson v Robinson, 2016 UT App 32

Utah Court of Appeals

Attorneys: F. Kevin Bond, Budge W. Call, Dean C. Andreasen, Diana L. Telfer

Summary: This case involved a stipulation and decree that required the sell of property and distribution of equity. The Husband did not properly perform, so he was held in contempt. Affirmed.

Holding (Sanctions): The court does not have the discretion to impose a sanction beyond the actual injury caused by the contemptuous behavior. See Goggin v. Goggin, 2013 UT 16, 299 P.3d 1079. The amount the court ordered the husband to pay was not a sanction, but rather the money that he had agreed to pay her in the stipulation.

 

Civil Procedure

Robinson v Robinson, 2016 UT App 32

Utah Court of Appeals

Attorneys: F. Kevin Bond, Budge W. Call, Dean C. Andreasen, Diana L. Telfer

Summary: This case involved a stipulation and decree that required the sell of property and distribution of equity. The Husband did not properly perform, so he was held in contempt. Affirmed.

Holding (Law of the Case): Under the law-of-the-case doctrine, a decision made on an issue during one stage of a case is binding on successive stages of the same litigation. IHC Health Servs. Inc., v. D&K Mgmt., Inc., 2008 UT 73, 196 P.3d 588. The court clarifies that res judicata applies as between multiple cases while the law of the case doctrine applies to successive proceedings within on case. The husband in this case did not prevail on using mistake or impossibility to have the stipulation set aside, so he cannot now use those arguments as defenses against the contempt on the same issues.

 

Property Division

Granger v. Granger, 2016 UT App 67

Utah Court of Appeals

Attorneys: David Pedrazas, Melissa M. Bean, Martin N. Olsen

Summary: This case looks into issues of the Woodward formula on a 401k, contract laws in regards to divorces, and attorney fees.

Holding (Contract Law): “In divorce cases, the ability of parties to contract is constrained to some extent by the equitable nature of the proceedings; therefore, the governing principle in our law is that contracts between spouses are enforceable and generally subject ot ordinary contract principles so long as they are negotiated in good faith…and do not unreasonably constrain the divorce court’s equitable and statutory duties.” Ashby v. Ashby, 227 P.3d 246; Maxwell v. Maxwell, 796 P.2d 403 (Utah Ct. App. 1990) (while a property settlement agreement is not binding upon a trial court in a divorce action, such agreement should be respected and given considerable weight in the trial courts determination of an equitable division of property.). And, in determining the distribution of marital property in a divorce proceeding, the overriding consideration is that the ultimate division be equitable – that property be fairly divided between the parties. Newmeyer v. Newmeyer, 745 P.2d 1276 (Utah 1987). The court then cites several other cases that discuss this issue.

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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