mom_baby

This case law update has a summary of all of the family law decisions from the Utah Supreme Court and the Utah Court of Appeals since the last update. There is a particularly helpful summary on proceeds from civil litigation, whether or not they are marital or separate property, and a helpful discussion about the UCCJEA. Enjoy!

Custody

Jones v. Jones, 2016 UT App 94

Utah Court of Appeals

Attorneys: Brent M. Brindley; Jared L. Peterson

Summary: The marriage was in Moab. Father moved to Saint George. He was awarded primary custody and she received the long distance parent-time from 30-3-37, unless she moved closer and then she would receive 30-3-35. Father then moved to Monroe, which was 186 miles from Moab. Mother rented a house in Monroe and filed an order to show cause to exercise 30-3-35, which was granted. Then she moved back to Moab. The Court said she could keep exercising 30-3-35 while living in Moab.

Holding (Change of Circumstances): A lesser showing may be required when the change sought is not a change of custody, see Haslam v. Haslam, 657 P.2d 757 (Utah 1982) (stating that “change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.”); see also Becker v. Becker, 694 P.2d 608 (Utah 1984). While Becker may require some showing of change in circumstances when a district court alters parent-time arrangements, that showing does not rise to the same level as the substantial and material showing required when a district court alters custody.

Holding (30-3-35 with 186 miles apart): It was in the court’s discretion to order 30-3-35 even though it would impact the children’s ability to participate in sports, church, and scouts because of the 186 travel distance. “We do not believe that section 30-3-37 establishes a rigid requirement that whenever parents live 150 miles or more apart, parent-time must be determined as set forth in that provision.” See UCA § 30-3-33(9) which gives the court flexibility in these decisions.

Holding (Best Interests): The children had previously lived in Moab, spending more time there would increase familial connections with mother and her fiancé, they had friends and family near Moab. Also, the mother could not financially maintain her rental in Monroe. Although the father’s travel time would increase, the court properly only considered the children’s best interest, not the father’s. The court’s decision was not so “flagrantly unjust as to constitute an abuse of discretion.” See Hogge v. Hogge, 649 P.2d 51, 56 (Utah 1982).

Woodward v. LaFranca, 2016 UT App 141

Utah Court of Appeals

Attorneys: Troy L. Booher; Noella A. Sudbury; Julie J. Nelson; Sara J. Pfrommer; Brent D. Young; Dallas B. Young

Summary: Mother originally had custody of child but she started making many allegations of physical and sexual abuse. The abuse was unsubstantiated, so the commissioner granted father’s motion for temporary custody. At the trial on father’s petition to modify, Judge Hansen disregarded all three of the expert’s opinions (Evaluator, Therapist, and Special Master) that it was best to give father custody. Judge Hansen denied the petition to modify, giving custody back to the mother. In the first appeal, Woodward v. LaFrance, 2013 UT App 147, the case was remanded for much more fact analysis. The district court did that fact analysis and reissued a decision to deny the petition to modify. This time, the appellate court, seemingly reluctantly, accepts the fact analysis and affirms the award to the mother.

Holding (Rejection of Expert Testimony): The appellate court seems to very narrowly decide that the district court complied with the remand to meaningfully reconsider their testimony rather than reject it out of hand. Because the court complied with the directions, the appellate court says that it must affirm, even if it disagrees with the issue. It seems to leave the door open to the original question of whether all three experts can be disregarded out of hand (since it did not say they could not in the first appeal). The appellate court says that the question in the second appeal is very narrow and is only whether the district court articulated a reasonable basis for rejecting the opinions. It does not agree with the outcome, but finds that the district court did comply. The appellate court criticizes many of the trial court’s findings and even finds that some were still inadequate. However, the appellate court holds that it is unlikely that the outcome will change upon further remand, so the exercise useless.

Alimony

Taft v. Taft, 2016 UT App 135

Utah Court of Appeals

Attorneys: Leslie W. Slaugh; Michael R. Labrum

Summary: This is a very long case dealing with many issues. Each one is discussed individually.

Holding (Alimony – General Law): The Court starts will an excellent recitation of alimony law as follows: The principal factors are “(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.” Utah Code Ann. § 30–3–5(8)(a) (LexisNexis 2013); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985). The trial court must also “make adequate findings on all material issues of alimony to reveal the reasoning followed in making the award.” Bolliger v. Bolliger, 2000 UT App 47, ¶ 19, 997 P.2d 903 (citation and internal quotation marks omitted). “Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (citation and internal quotation marks omitted). The goals of a proper 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.” Dobson v. Dobson, 2012 UT App 373, ¶ 20, 294 P.3d 591. In cases where the parties’ combined resources are insufficient to support both parties at the economic level they enjoyed during marriage, equalization of “the parties’ respective standards of living” is appropriate. Utah Code Ann. § 30–3–5(8)(f). “Equalization of income … is a trial court’s remedy for 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.” Keyes v. Keyes, 2015 UT App 114, ¶ 39, 351 P.3d 90 (citation and internal quotation marks omitted). Accordingly, the trial court “must determine how to equitably allocate the burden of insufficient income” to meet the needs of “two individuals living separately.” Id.

Holding (Alimony – Husband’s Income): The court affirms the trial court’s decision on its calculation of the husband’s rental income simply because the wife did not martial the evidence to show that it was necessarily wrong. However, more helpful from this section is the court’s recitation of the law for self-employed individuals as follows: [Husband] treats both businesses as sole proprietorships, routinely paying all business and personal expenses out of business checking accounts.” It therefore determined Husband’s income according to the procedure outlined in Utah Code section 78B–12–203 for self-employed persons, like Husband. “Gross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts.” Utah Code Ann. § 78B–12–203(4)(a).

Holding (Alimony – Expert Testimony and Evidience): The court spends many pages on explaining the requirements of martialing the evidence. In this case, there were 190 exhibits. The court explains that it cannot be expected to put together an accounting puzzle from a pile of cursory explanations. It explains that an expert on her side would have been helpful.

Holding (Alimony – Wife’s Needs Analysis): The court remands the decision on the Husband and Wife’s needs analysis because the trial court was overly vague about how it determined each of their needs. It improperly said that wife’s was over inflated, but did not explain which expenses were reasonable. It also improperly said that husband’s expenses were too muddled to decipher his actual need. “Any lsack of clarity in the trial court’s findings must fall on the parties’ failure to substantiate, rather than merely summarize, their monthly expenses and income. See Dahl v. Dahl, 2015 UT 79, ¶¶ 95-96 (explaining that a party seeking alimony bears the burden of demonstrating to the court the Jones factors support an award of alimony).

Holding (Property Award’s Impact on Alimony): While consideration of the property award when making an alimony determination is not generally improper, in this case, reliance on the property award seems problematic because the judgment is payable over a ten-year period, with the monthly amount at Husband’s sole discretion, thus making it an unreliable income supplement.

Holding (Temporary Support): The parties had a temporary support order for $3,500 per month. Husband failed to pay much of it. The trial court did not impose a judgment of the unpaid amounts and the appellate court remands. The trial court did not sufficiently explain the husbands ability to pay and the wife’s needs. It did not show that it would have been “mathematically impossible” for the husband to pay.

Mullins v. Mullins, 2016 UT App 77

Utah Court of Appeals

Attorneys: Daniel J. Tobler; Benjamin L. Wilson; Robert W. Ickes; Sonia H. Ickes

Summary: The husband appeals a high alimony award and an allocation of the wife’s student debts as marital, even though they were incurred during the separation. The appellate court upholds both decisions.

Holding (Alimony): The parties were married for approximately ten (10) years and had three (3) children. The wife was a stay-at-home mother during the marriage. The husband netted $5,900 per month at two (2) jobs. The mother was imputed to $850 per month. The court’s award of $1,272 in child support and $1,200 in alimony was upheld. The court made very detailed findings about the parties’ abilities to earn and needs. The court properly divided the poverty after calculating each parties’ shortfall of approximately $750.

Holding (Standard at Time of Marriage or Trial): Generally, the court should look to the standard of living at the time of marriage. Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991). However, the court can consider all facts to create an equitable split and the court in its discretion may base alimony on the standard of living that existed at the time of trial. UCA 30-3-5(8)(e).

Holding (Alimony Law): The Utah Supreme Court has held that the purpose of alimony is to equalize the standard of living for both spouses, maintain them at their present standard of living as much as possible, and avoid the necessity of one spouse receiving public assistance. Boyle v. Boyle, 735 P.2d 699, 671 (Utah Ct. App. 1987). The court may not award alimony based on income equalization alone, but must also analyze the financial needs and condition of the recipient spouse and the ability of the payor spouse to provide support. Bakanowski v. Bakanowski, 2003 UT App 357; see also UCA § 30-3-5(8)(a)(i), (iii).

Termination of Parental Rights

D.D.B. v. J.L.C., 2016 UT App 147

Utah Court of Appeals

Attorneys: Paul W. Mortensen; J.L.C. Pro Se; Martha Pierce

Summary: The father was as awful as they come, but the district court refused to terminate parental rights because, it would leave the child with only one parent, would cut off father’s extended family, there was no direct evidence of psychological damage to the child, and the district court in the divorce action did not cutoff contact to the father. The appellate court reversed and terminated the father’s rights on the facts on the record without remand.

Holding: Termination requires a two-step analysis. 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 a finding that a parent is unfit or incompetent based on any of the grounds for termination under U.C.A. § 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; see also U.C.A. § 78A-6-503(12). A petitioner has the burden of establishing both of these elements by clear and convincing evidence. Id. In this case, the court correctly determined that the father was unfit. In the analysis, the court outlined all of the reasons that the father was unfit. Then the court turned to step two, child’s best interest, and conducted an entirely separate analysis, but did not bring over any of the facts from the first step. The appellate court holds that even though they are separate steps, they often go hand in glove and if a parent is found to be unfit, then termination is generally in the child’s best interest. This is true even when it cuts off support, leaves the child with only one parent, and cuts off extended family. The court should have considered its findings under U.C.A. § 78 A-6-507 in making the best interest analysis as well. The court should not focus on ideals and speculative possibilities in the future. “[A]lthough the court has a duty to look forward…the court must consider such evidence in light of the parent’s past conduct.” See in re M.L., 965 P.2d 551 (Utah Ct. App. 1998).

Holding (Single Parent): “Although ideally children are raised by two nurturing parents and have the benefit of a positive relationship with an extended family, such is not the case in many children’s lives today.” See, e.g., In re B.O., 2011 UT App 215 (affirming termination of parental rights where the child was placed in a single-parent home); In re C.A., 2006 UT App 159U (affirming termination of parental rights where adoptive home had not yet been found).

Adoption

In the matter of Adoption of Baby Q, 2016 UT 29

Supreme Court of Utah

Attorneys: Asa E. Kelley; Troy L. Booher; Derek J. Williams; Julie J. Nelson

Summary: A biological father who had signed a voluntary acknowledgment of paternity contested an adoption. Even though he did not strictly comply with the statute regarding pre-birth notices, the court found that the pre-birth notice was inadequate because it lacked sufficient exact information.

Holding (Authorized Party): UCA § 78B-6-110.1(2) sates that a pre-birth notice may be provided by the child’s mother, a licensed child placing agency, an attorney representing a prospective adoptive parent, or an attorney representing the mother. The supreme court agrees with the district court that even though the notice came from a private investigator, it was the mother who authorized it. Therefore, this part of the statute was met.

Holding (Detailed Explanation of Consequences): The case deals with the Utah Adoption Act, UCA §§ 78B-6-101 to 146, specifically discussing the pre-birth notice provisions of UCA § 78B-6-110.1(2). The pre-birth notice did not give required information concerning the consequences of the birth father’s noncompliance. It said that he may lose his rights if he does not take action within thirty (30) days, but it should have said that he will lose his rights to object. The Court also hints that all of the other foreboding language from the statute should have also been included.

Of Note: The court specifically says that it is not answering the question of whether or not the pre-birth notice statute is constitutional. It seems to invite the question of whether shutting down the father’s right to object to a relinquishment even before the child is born is constitutional at all.

Attorney Fees

Granger v. Granger, 2016 UT App 117

Utah Court of Appeals

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

Summary: This case originally sorted out a retirement account distribution and attorney fees in Granger v. Granger, 2016 UT App 67. This appeal simply answered the wife’s petition for rehearing on the issue of her attorney fees.

Holding (Attorney Fees on Appeal): On rehearing, the Court added a paragraph to the original opinion awarding wife attorney fees on appeal.

Taft v. Taft, 2016 UT App 135

Utah Court of Appeals

Attorneys: Leslie W. Slaugh; Michael R. Labrum

Summary: This is a very long case dealing with many issues. Each one is discussed individually.

Holding (Attorney Fees): The trial court denied wife’s motion for attorney fees. The court remands for a more detailed analysis. A trial court “may order a party to pay the costs [and] attorney fees … of the other party” in a divorce proceeding. Utah Code Ann. § 30–3–3(1) (LexisNexis 2013). It must base its decision on specific findings regarding “ ‘evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees.’ ” Stonehocker, 2008 UT App 11, ¶ 49, 176 P.3d 476 (quoting Oliekan v. Oliekan, 2006 UT App 405, ¶ 30, 147 P.3d 464).

Retirement

Thayer v. Thayer, 2016 UT App 146

Utah Court of Appeals

Attorneys: Paige Bigelow; Douglas B. Thayer; Jordan Cameron

Summary: This case argued how to divide military retirement accounts under the Uniformed Services Former Spouses’ Protection Act (USFSPA). The court goes through a detailed analysis.

Holding: The district court errored in its interpretation of Johnson v. Johnson, 270 P.3d 556, aff’d in part, rev’d in part, 330 P.3d 704, and this court now clarifies. Also, the parties’ agreement as a whole required that husband’s retirement pay be divided according to the USFSPA’s current definition of “disposable retired pay.” The case goes through a detailed analysis of military retirement division and the two cases, in addition to Johnson¸that are relevant. They are McCarty v. McCarty, 453 U.S. 210 (1981) and Mansell v. Mansell, 490 U.S. 581 (1989). McCarty said that Congress could legislate regarding the spouses of military personnel. Then, Congress enacted the USFSPA, which allowed state courts to consider military retirement pay as divisible martial property, but only that portion it specifically defined as “disposable retired pay.” Later, in Mansell, the court held that under the USFSPA, state courts have been granted authority to treat disposable retired pay as community property; they have not been granted the authority to treat total retired pay as community property. The USFSPA does not authorize state courts to treat gross retirement pay as marital property divisible upon divorce. The fact that Johnson was included in the parties’ stipulation, does not prescribe any particular formula. Instead, Johnson simply stands for the principle that when dividing military retirement pay district courts must apply the precise definition of “disposable retired pay” found in the applicable version of the USFSPA, including “authorized” deductions. However, the USFSPA itself has been amended several times since the Johnson case. Current cases must conform with current versions of the USFSPA. The court found, on contract theory, that the parties intended to use the current definition of “disposable retired pay,” which did not account for the deductions before the division that the statute allowed during the Johnson case. Therefore, it should be divided before those deductions, in the wife’s favor. The court finishes with a statement that their finding is the more equitable finding given how it handled the wife’s retirement.

Property Distribution

Taft v. Taft, 2016 UT App 135

Utah Court of Appeals

Attorneys: Leslie W. Slaugh; Michael R. Labrum

Summary: This is a very long case dealing with many issues. Each one is discussed individually.

Holding (General Rule): There are four steps to property distribution. See Boyer v. Boyer, 2011 UT App 141; 259 P.3d 1063. First, the trial court should distinguish between separate and marital property; second, it should consider whether there are exceptional circumstances that overcome the general presumption that marital property [should] be divided equally between the parties; third, it should assign values to each item of marital property; and fourth, it should distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.

Holding (Water Shares): The court remands the trial court’s award of all water shares to the husband because the court did not make a specific finding about the water shares’ value, which is required.

Holding (Bussiness Inventory): The court remands for more factual development of the value of the business inventory because the business evaluations did not properly address it.

Holding (Delayed Distributions of Property): Wife is entitled to both an equitable property award, see Olsen v. Olsen, 2007 UT App 296; 169 P.3d 765, and to interest on the accured installments on the judgment. See McKay v. McKay, 370 P.2d 358, 359 (Utah 1962). The court used an interest at the judgment rate of 2.13%, as provided by U.C.A. § 15-1-4. The court allowed the husband to pay this off at his discretion. These terms are not equitable. The wife cannot access her half of the access for potentially many years and is in effect loaning them to the husband at a very low interest rate. This also does not allow the wife to go forward with her own life. Remanded.

Holding (Fraudulent Transfer of Property): The court denies a remand to determine if the Sunglow property was fraudulently transferred to husband’s parents during the divorce action because there is evidence to show that it was not the husband’s intent to defraud. Under the Uniform Fraudulent Transfer Act (UFTA), if the property transferred fits the definition of an “asset,” and if the debtor made the transfer “with actual intent to hinder, delay, or defraud any creditor or debtor; or without receiving a reasonably equivalent value in exchange for the transfer or obligation,” the transfer will be considered fraudulent.12 Utah Code Ann. § 25–6–5(1)(a)–(b) (LexisNexis 2013). Section 25–6–5 lays out several factors to be considered in assessing whether a debtor conveyed an asset “with actual intent to hinder, delay, or defraud any creditor or debtor.” These include, among other things, whether “the transfer or obligation was to an insider”; whether “the debtor retained possession or control of the property transferred after the transfer”; whether “the transfer or obligation was disclosed or concealed”; and whether “the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.” Id. § 25–6–5(2)(a)–(c), (h).

Holding (Whether the Sunglow Property was Marital): Even though it wasn’t conveyed fraudulently, the Sunglow property was still marital and should have had its equity equitably divided.

Andersen v. Andersen, 2016 UT App 182

Utah Court of Appeals

Attorneys: Marshall Thompson; David C. Blum

Summary: This case goes through a number of issues involving child care costs, imputed income, and civil litigation proceeds. The appellate court affirms on all, denying all of Husband’s claims.

Holding (Child Care Receipts): The district court properly relied on Wife’s testimony that the child care service made direct withdrawals from her bank and did not provide her with invoices. The court could properly rely on her testimony of the costs. The court also properly refused to adopt father’s evidence because it was incomplete and lacked credibility.

Holding (Imputing Income): The court properly imputed income to the husband because his evidence contradicted itself and he lacked credibility.

Holding (Settlement Proceeds): The trial court was correct in finding that the civil law suit proceeds of $130,000 were not personal injury. The terms personal injury were never used in the complaint or settlement agreement and there is no evidence of personal injury. Instead, the suit was for lost rents and wages, which are marital in nature.  This court has explained that compensation for a personal injury can be either separate property or marital property, depending on the nature of the damages. Naranjo v. Naranjo, 751 P.2d 1144, 1146. Specifically, “amounts received as compensation for pain, suffering, disfigurement, disability, or other personal debilitation are generally found to be the personal property of the injured spouse in divorce actions.” Id.; see also Izatt v. Izatt, 627 P.2d 49, 51 (Utah 1981) (determining that a wife’s personal injury compensation related to a medical malpractice suit that caused her to have two cardiac arrests was her personal property). But “money realized as compensation for lost wages and medical expenses, which diminish the marital estate, are considered to be marital property.” Naranjo, 751 P.2d at 1148; see also Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329, 331–32 (Ariz. Ct. App. 1980) (concluding that compensation awarded to an injured employee for lost wages and medical expenses, and not pain and suffering, was marital property).

Debt

Mullins v. Mullins, 2016 UT App 77

Utah Court of Appeals

Attorneys: Daniel J. Tobler; Benjamin L. Wilson; Robert W. Ickes; Sonia H. Ickes

Summary: The husband appeals a high alimony award and an allocation of the wife’s student debts as marital, even though they were incurred during the separation. The appellate court upholds both decisions.

Holding (School Loan Debt): The district court ordered the wife to pay her student loans that she accumulated during the separation, but called them marital because they were incurred during the marriage. Even though she was ordered to pay them, the court used the amount to equalize the other debts. This was upheld on equitable principles and because she has a lower ability to earn. “There is no fixed formula upon which to determine a division of debts in a divorce action.” Rehn v. Rehn, 974 P.2d 306. The distribution was not inequitable given her employment status. See Baker v. Baker, 866 P.2d 540, 542-43 (Utah Ct. App. 1993) (placing the majority of the marital debts on one party was deemed equitable givne the parties’ relative earning capacities and current state of employment).

Note: The husband did not properly raise the issue of whether or not the debt earned during the separation was or was not marital, and therefore, the issue is not decided.

Civil Procedure

Nevares v. Adoptive Couple (Nevares II), 2016 UT 39

Supreme Court of Utah

Attorneys: Wesley D. Hutchins; Brent D. Wride; Tiffany M. Brown

Summary: The district court was affirmed in its decision that the lower court did not have subject matter jurisdiction over the child under the UCCJEA. This is despite the fact that, under different arguments, the appeallate court ruled in favor of Nevares in Nevares I. The court finds now, that the district court never had subject matter jurisdiction, dismissing the case.

Holding (Home State): Once the child lived in Illinois for six (6) months, Illinois became the child’s home state. . The district court correctly found that it lacked subject matter jurisdiction under the UCCJEA because the child and the adoptive parents had live in Illinois for all but the first 8 days of the child’s life and because they had already filed an adoption there and obtained a custody order. Before a court can make an initial child custody determination, it must assess whether it has jurisdiction under the UCCJEA. Id. § 78B–13–201(1). 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 in accordance with the UCCJEA or a similar act. See id. § 78B–13–202.

Utah Code section 78B–13–201 defines when a Utah court “has jurisdiction to make an initial child custody determination.”

Except in circumstances implicating temporary emergency jurisdiction, a Utah court can make an initial child custody determination only if

(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(b) a court of another state does not have jurisdiction under Subsection (1)(a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 78B–13–207 or 78B–13–208; and

(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this state other than mere physical presence; and

(ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;

(c) all courts having jurisdiction under Subsection (1)(a) or (b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 78B–13–207 or 78B–13–208; or

(d) no state would have jurisdiction under Subsection (1)(a), (b), or (c).

UCCJEA defines a child’s home state as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.Id. § 78B–13–102(7).

Holding (Significant Connection with State): The court also finds that there is no jurisidciiton under 78B-13-201(1)(b), which requires a significant connection between a child and the state of Utah. This is true even if the other requirements of the statute are met.

Holding (Timing of Dismissal): This case was dismissed after 5 years of litigation and after a successful court appeal. The court explains that in Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1151 (Utah 1995) “[S]ubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable” and in Barnard v. Wassermann, 855 P.2d 243, 248 (Utah 1993) “[C]hallenges to subject matter jurisdiction may be raised at any time….”.

Bhongir v. Mantha, 2016 UT App 99

Utah Court of Appeals

Attorneys: Jerry Salcido; Spencer Salcido; Steven C. Russell

Summary: The district court’s decision to allow the decree to be set aside under Utah R. Civ. P. 60(b) is affirmed. The court set aside the provisions of no alimony and awarded alimony. The attorney fees are remanded for reasonableness review.

Holding (60(b)): Under Rule 60(b), the court “may in the furtherance of justice relieve a party of his legal representative from a final judgment, order, or proceeding for … mistake, inadvertence, surprise, or excusable neglect.” In the stipulation, the parties stated that wife could support herself without alimony. That was not true because she was living at the YMCA and earning nothing. This was a factual mistake, not a legal mistake. “This is exactly how rule 60(b) is intended to operate. See Goode v. Goode, 624 N.E. 2d 788, 791-92, 795-96 (Ohio Ct. App. 1993) (where spousal support award was based on stipulation containing mutual mistake as to the wife’s income, the trial court erred by denying the husband’s motion for relief under rule 60(b) of the Ohio Rules of Civil Procedure). Divorces cases apply a liberal standard for application of Rule 60(b). See Boyce Boyce, 609 P.2d 929, 931 (Utah 1980). In Begum v. Begum, 347 P.3d 25 (Utah App. Ct. 2015), the district court had broad discretion in ruling on rule 60(b) motions because most are equitable  in nature, saturated with facts, and call upon judges to apply fundamental principles of fairness that do not easily lend themselves to appellate review.

Ford v. Ford, 2016 UT App 127

Utah Court of Appeals

Attorneys: Robert A. Winsor; N. Adam Caldwell; Stephen R. Schwendiman

Summary: The husband filed a petition to modify support orders and the wife responded by filing an order to show cause. The husband failed to respond to wife’s requests for discovery saying that she asked for too many admissions and her requests were late. But, he never filed an objection, he just did not respond. At trial, the Court asked if the husband would agree to pay her attorney fees if the court continued the trial. The husband refused. So the court dismissed his petition without prejudice as a sanction for his discovery violations. The trial went forward on her OSC only. The decision is affirmed.

Holding (Parties Cannot Ignore Discovery Requests, They Must Admit, Deny, or Object): Utah R. Civ. P. 36 requires parties to respond to request for admission within twenty-eight (28) days. “A matter is deemed admitted unless, within 28 days after service of the request, the responding party responds in writing. Id. “Unless a party objects to a matter, the party must admit or deny the matter or state in detail the reasons why the party cannot truthfully admit or deny.” Id. “Parties who ignore requests for admissions do so at their peril.” Mercado v. Hill, 273 P.3d 385. “The district court did not err when it determined that Ford was required to respond to Tun’s requests for admissions. Indeed, it did not have discretion to rule otherwise.”

Holding (Sanctions): When discovery requests are outstanding, failure to respond in the appropriate time frame may subject the noncomplying party to sanctions under Rule 37. See Tuck v. Godfrey, 981 P.2d 407. Rule 37(b) authorizes the court to strike all or part of the pleadings, deem the matter or any other designated facts to be established in accordance with the claim or defense, order the party or the attorney to pay the reasonable costs, expenses, and attorney fees caused by the failure. District courts have “broad discretion in selecting and imposing sanctions for discovery violations.” Tuck, 1999 UT App 127, ¶ 15.

Thayer v. Thayer, 2016 UT App 146

Utah Court of Appeals

Attorneys: Paige Bigelow; Douglas B. Thayer; Jordan Cameron

Summary: This case argued how to divide military retirement accounts under the Uniformed Services Former Spouses’ Protection Act (USFSPA). The court goes through a detailed analysis.

Holding (Stipulations): “Even in the context of divorce, parties are generally bound by their stipulations.” See Bayles v. Bayles, 1999 UT App 128, ¶ 15, 981 P.2d 403 (Stipulations entered into in contemplation of a divorce are conclusive and binding on the parties unless, upon timely notice and for good cause shown, relief is granted therefrom). This is also true for military retirement pay. See Maxwell v. Maxwell, 796 P.2d 403, 406 (Utah Ct. App. 1990). Therefore, the court will look to the plain language and other contract principles, but also to whether the contract is equitable under divorce law.

Taft v. Taft, 2016 UT App 135

Utah Court of Appeals

Attorneys: Leslie W. Slaugh; Michael R. Labrum

Summary: This is a very long case dealing with many issues. Each one is discussed individually.

Holding (Preserving for Appeal): [I]n order to preserve an issue for appeal[,] the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in original) (citation and internal quotation marks omitted). In other words, the issue “must at least be raised to a level of consciousness such that the trial judge can consider it.” See LeBaron & Assoc. Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 (Utah Ct. App. 1991) (citation and internal quotation marks omitted). If it is not, and if the party does not argue an exception on appeal, the argument may be deemed waived. See 438 Main St., 2004 UT 72, ¶ 51, 99 P.3d 801; see also Jacob v. Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535 (“[W]e do not address arguments brought for the first time on appeal unless the [trial] court committed plain error or exceptional circumstances exist.” (second alteration in original) (citation and internal quotation marks omitted)).

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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