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This case law update includes an important Utah Supreme Court case regarding grandparents’ rights, the Court’s discretion with custody evaluator recommendations, important civil procedure pit falls, and more. Enjoy!

Custody

Vaughan v. Romander, 2015 UT App 244

Utah Court of Appeals

Attorneys: John M. Webster, Kenji J. Kawa, Cassie Medura, Jarrod H. Jennings

Summary: At a trial for custody, it was within the Court’s discretion to deny a motion to continue the trial. It was also acceptable that the father was awarded custody even though the evaluator switched her recommendation during the process.

Holding (Primary Custody): The appellate court affirms the trial court’s decision to give the father primary custody, despite the custody evaluator’s flip flop on the issue. First, the mother does not provide any evidence that contradicts the finding that she engaged very little in one-on-one time with the minor child in play and learning. Second, the mother provided no evidence that contradicted the finding that the trial court had a concern about her ability to support a relationship between the child and father. The Court found concern in the fact that she limited the time with the father after the temporary order expired, rather than giving him more liberal visitation; and, was not supportive of the father’s relationship with the child. Third, the mother provided no evidence to contradict the court’s finding about her financial instability. Lastly, the mother provided no adequate evidence, except her own testimony, that the child had age appropriate toys and a designated place to sleep. It was not enough for the mother to simply testify about these issues when confronted with an evaluator that stated there was not age appropriate toys or a designated place to sleep.

Holding (Parent-Time Schedule): The Court did not substantially deviate from the evaluator’s recommendation even though it switched the weeknight that the mother would have.

 

Peck v. Polanco, 2015 UT App 236

Utah Court of Appeals

Attorneys: Brent D. Wride, Bryant McConkie

Summary: Petition to modify joint custody to give father sole custody was denied. He did not carry his burden in a very close case.

Holding: The parties stipulated to joint custody and co-parented with the kids in the Dominican Republic. The father moved to California and petitioned for sole custody modification. The custody evaluator recommended father have custody. Trial court was within its discretion to give sole custody to the mother. “Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” See Barrani v. Barrani, 334 P.3d 944; State v. Maestas, 299 P.3d 892. “Nevertheless, although the trial court is not bound to accept an expert’s recommendation, the court is expected to articulate some reason for rejecting the recommendation.” Id. The trial court did properly weigh all of the evidence and explained why it came to a different conclusion from the evaluator In short, the court gave more weight to the facts that mother had always been the children’s primary caregiver (even though both were extensively involved), that the children were doing well under the current arrangement (living in the Dominican Republic), that the mother had relatives living nearby who assist with caring of rthe children, the mother would rely less on surrogate care, and that two of the children were born in the DR and did not speak English.

 

Grand Parent Visitation

Jones v. Jones, 2015 UT 84

Utah Supreme Court

Attorneys: Bryant J. McConkie, Adam Wentz, Paul R.Q. Wolfson, Shirley Woodward, Sonya L. Lebsack, Anthony C. Kaye, Emily Wegener

Custody Evaluators: Heather Walker (recommending visitation for grandparents) and Monica Christy (rebutting Heather Walker’s recommendation)

Summary: In the case of a two year old, whose father had passed away due to a heroin overdose, the trial court errored in granting grandparent visitation over the objections of the mother.

Holding: A visitation order under UCA § 30-5-2 is subject to strict scrutiny review, requiring proof that a grandparent visitation order is narrowly tailored to advance a compelling governmental interest. The case goes through all of the fundamental right due process cases in regards to parenting, specifically focusing on Troxel from the US Supreme Court. The Court does not reach the issue of whether the order was narrowly tailored because it finds that the lack of evidence of harm was insufficient to meet the test. “The state interest in overriding a parent’s fundamental rights is ‘compelling’ only in circumstances involving the avoidance of harm that is substantial…a mere conclusion that a child’s ‘best interests’ may be advanced by and award of visitation is insufficient.” The Court then says that perhaps the loss of a “custodian or caregiver” would rise to the level, although that is not made certain because in this case the grandparents did not meet that definition. The Court then outlines other harms that may be enough in a case like this such as, proof of child neglect and abuse, where the child’s physical or mental health is jeopardized, or where a parent is unfit in a manner causing a potential harm. The Court then contrasted these grandparents from those in Uzelac v. Thurgood, who had a closer relationship with the child (reaching the level of a custodian or caregiver). In Uzelac, the grandmother took care of the child on a daily basis throughout most of the child’s first four years of life, such that she had an emotional attachment as strong as that seen between parents and children and the loss of contact would have been devastating and caused the child to suffer. 2006 UT 46.

 

Right of First Refusal

Vaughan v. Romander, 2015 UT App 244

Utah Court of Appeals

Attorneys: John M. Webster, Kenji J. Kawa, Cassie Medura, Jarrod H. Jennings

Summary: At a trial for custody, the trial court was within its discretion to create a 24 hour right of first refusal, rather than a shorter period.

Holding (Right of First Refusal): While the statute (U.C.A. §30-3-33(15)) favors parental care, the statute’s plain language does not entitle the willing and able noncustodial parent to provide day care. It merely suggests that the trial court encourage such an arrangement based on the presumption that parental care is better. See Wright v. Wright, 2011 UT App 424, ¶ 22, 268 P.3d 861. Because Mother is not entitled to a right of first refusal, it would have been within the trial court’s discretion to have declined to order any right of first refusal at all.

 

Attorney Fees

Vaughan v. Romander, 2015 UT App 244

Utah Court of Appeals

Attorneys: John M. Webster, Kenji J. Kawa, Cassie Medura, Jarrod H. Jennings

Summary: The appeal was not frivolous and therefore attorney fees were not granted.

Holding: We may award “just damages” which can include an award of attorney fees, if we conclude that an appeal is frivolous. Utah R. App. P. 33(a). A frivolous appeal is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law. The imposition of such a sanction is a serious matter and only to be used in egregious cases.

 

Adoption

In the Matter of the Adoption of B.Y., 2015 UT 67

Utah Supreme Court

Attorneys: Wesley D. Hutchins, Larry S. Jenkins, Lance D. Rich

Summary: A putative father had no right to intervene in an adoption because he did not take the steps necessary to protect his rights under the Adoption Act.

Holding: The mother was married to another man and became pregnant with Strickland’s baby. The two agreed that she would not put the baby up for adoption if he promised never to leave and help with anything B.Y. needed or wanted. Based on the agreement, Strickland did not file a paternity action under U.C.A. § 78B-6-121(3) to protect his rights. However, she did put the baby up for adoption the day after it was born. The Court holds that Strickland lacked standing to contest the adoption because he had not protected his rights in accordance with the statute.

 

Real Property

Hibbens v. Hibbens, 2015 UT App 278

Utah Court of Appeals

Attorneys: David Pedrazas, Platte Seth Nielson

Summary: In a modification case, the Court properly terminated husband’s duty to pay for a 2nd mortgage that husband was ordered to pay in the divorce.

Holding: There was a substantial and material change in circumstances because: 1) the wife started voluntarily assuming the second mortgage; and, 2) the wife refinanced the second mortgage, rolling it into the main mortgage, which the husband was not responsible for. It was proper to terminate the husband’s duty to pay the second mortgage.

 

Child Support

Hibbens v. Hibbens, 2015 UT App 278

Utah Court of Appeals

Attorneys: David Pedrazas, Platte Seth Nielson

Summary: In a modification case, the Court properly modified child support.

Holding (Adult Children): The parties originally agreed that child support would go until the children graduated from college. However, two of the kids had reached the age of majority, neither of whom attended college and one of whom was now married. This case was a deviated order because child support lasted longer than prescribed in the guidelines. The order in this case did not automatically adjust in this case because it was a case of a deviated support order. In child support cases, where the order deviates from the guidelines, automatic adjustment of the order does not apply and the order will continue until modified by the issuing tribunal. U.C.A. § 78B-12-219(3). The Court has the power to order continued support until the age of 21 when it appears to be necessary and when the court makes findings of any special and unusual circumstances to justify the order. Thornblad v. Thornblad, 849 P.2d 1197, 1199 (Utah Ct. App. 1993)(quoting Harris v. Harris, 585 P.2d 435, 437 (Utah 1978). The Court properly terminated the award because both children had turned 18, neither was attending college, neither was disabled or struggling with any special needs, and no special or unusual circumstances were present.

Holding (Minor Child): Wife’s permanent disability caused a permanent reduction of income of more than 30%, which resulted in more than a 15% change in child support. Therefore, a modification was proper.

 

Reller v. Argenziano, 2015 UT App 241

Utah Court of Appeals

Attorneys: Gregory W. Stevens, James A. McIntyre, Richard R. Golden

Holding (Imputed Income): A finding of voluntary unemployment or underemployment is not a prerequisite to imputing income. This is a change from the previous statute. See Rayner v. Rayner, 2013 UT App 269, ¶ 10 & n.4, 316 P.3d 455. The new statute simply requires that the court identify the evidentiary reason for the decision. Father gave credible testimony about why he was unemployed and about his lack of education. Mother failed to provide expert testimony supporting her claims that he could be hired and earn more than what was claimed. It was proper for the court to based father’s wages on his testimony and the Bureau of Labor Statistics for his job description. U.C.A. § 78B-12-203(7)(b) gives the details about imputing income.

 

Modification

Hibbens v. Hibbens, 2015 UT App 278

Utah Court of Appeals

Attorneys: David Pedrazas, Platte Seth Nielson

Summary: In a modification case, the Court properly terminated husband’s duty to pay for a 2nd mortgage that husband was ordered to pay in the divorce.

Holding: To succeed on a petition to modify a divorce decree, the moving party must first show that a substantial and material change of circumstances has occurred since the entry of the decree and not contemplated in the decree itself. Bolliger v. Bolliger, 2000 UT App 47, ¶ 11, 997 P.2d 903.

 

Peck v. Polanco, 2015 UT App 236

Utah Court of Appeals

Attorneys: Brent D. Wride, Bryant McConkie

Summary: Petition to modify joint custody to give father sole custody was denied. He did not carry his burden in a very close case.

Holding: The parties stipulated to joint custody and co-parented with the kids in the Dominican Republic. The father moved to California and petitioned for sole custody modification. The custody evaluator recommended father have custody. Trial court was within its discretion to give sole custody to the mother. “It is the burden of the party seeking modification of a divorce decree to demonstrate that there has been a substantial change in circumstances that justifies modification.” Crouse v. Crouse, 817 P.2d 836, 838 (Utah Ct. App. 1991).

 

Continuance

Vaughan v. Romander, 2015 UT App 244

Utah Court of Appeals

Attorneys: John M. Webster, Kenji J. Kawa, Cassie Medura, Jarrod H. Jennings

Summary: At a trial for custody, it was within the Court’s discretion to deny a motion to continue the trial. It was also acceptable that the father was awarded custody even though the evaluator switched her recommendation during the process.

Holding (Continuance): The final custody evaluation was timely delivered within the terms of the parties’ stipulation and mother was on notice of the issues concerning custody.

 

Civil Procedure

Reller v. Argenziano, 2015 UT App 241

Utah Court of Appeals

Attorneys: Gregory W. Stevens, James A. McIntyre, Richard R. Golden

Summary: The trial court did not error in refusing to try a larger period of retroactive child support than what was pleaded initially.

Holding (Rule 15(b)): At trial, the mother wanted to expand the period of time for retroactive child support from the period of time that was in the petition. The trial court provisionally admitted evidence on the issue over the father’s objections. The court then refused to expand the time frame and the appellate court found that this was proper. URCP 15(b) says that when issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. However, the father objected at trial, and that was enough to overcome an argument of express or implied consent.

Holding (Motion to Amend): The trial court properly denied the mother’s motion to amend the petition the day of trial. URCP 15(a) allows for an amendment. The trial court must weigh three factors: 1) the timeliness of the motion, 2) the justification for the delay, and 3) and the resulting prejudice. This case then goes through the analysis and gives many circumstances where amending is not allowed.

Holding (Forfeiture of Retroactive Child Support): Because the mother did not amend the petition to include a claim for the retroactive child support, she forfeited that argument so that it could not be raised in a later suit.

 

Contempt

Reller v. Argenziano, 2015 UT App 241

Utah Court of Appeals

Attorneys: Gregory W. Stevens, James A. McIntyre, Richard R. Golden

Holding (Contempt): The Court properly denied the request to hold father in contempt for unpaid child support that was ordered during the temporary orders. Father provided evidence that he did not have the ability to pay.

 

Stalking Injunction

Judd v. Irvine, 2015 UT App 238

Utah Court of Appeals

Attorneys: Pro Se

Holding: The court upheld the stalking injunction stating “we do not read the plain language of the Stalking Statute (U.C.A. § 75-5-106.5(1)(b)) to require that each act or incident independently be such as to cause a reasonable person to fear for his or her safety; rather, it is the pattern of behavior or the course of conduct considered in the context of the circumstances that must have that cumulative effect. See Coombs v. Dietrich, 2011 UT App 136, ¶ 13, 253 P.3d 1121.

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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