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This legal update provides family law case summaries from the Utah Supreme Court and the Utah Court of Appeals from the second half of 2014. In addition to an awesomely insane case involving astronomical attorney fees (Dahl), this summary breaks down the courts’ rulings on: custody, alimony, child support, child care, medical expenses, abuse and neglect, protective orders and stalking injunctions, retirement benefits, pensions, stocks, and investments, debt, paternity, termination of parental rights, real property, personal property, grandparents’ rights, contempt and orders to show cause, attorney fees, domesticating cases, intervening parties, and some fancy information about civil procedure. Enjoy!

Custody

Dahl v. Dahl, 2015 UT 23

Utah Supreme Court

Attorneys:        Steve S. Christensen

Craig L. Pankratz

Samuel J. Sorensen

Sara Pfrommer

Rosemond G. Blakelock

Ryan D. Petersen

 

Summary: This case involved years of contentious litigation between a doctor husband and a stay at home mother. It also involved the consolidation of a trust as marital property. The Court cited to the District Court’s statement that the case was a “train wreck.”

 

Parenting Plans: Under U.C.A. § 30-3-10(1)(b) states that district courts shall, in every case, consider joint custody. Custody determinations are equitable in nature and require the court to consider the best interest of the child in determining any form of custody. See U.C.A. § 30-3-10(1)(a). U.C.A. § 30-3-10.8 requires that a party file a parenting plan if they seek joint custody. The complete absence of a parenting plan precludes an award of joint custody. Trubetzkoy v. Trubetzkoy, 2009 UT App 77. Regardless of Trubetzkoy’s holding, a party may amend their pleadings and move for joint custody and include a parenting plan, even when they originally asked for sole custody.

 

Barrani v. Barrani, 2014 UT App 204

Utah Court of Appeals

Attorneys:        Cobie W. Spevak

Curtis L. Wenger

 

Summary:        This case involved physical custody, child support, and alimony. The court upholds the lower court’s decision to give the mother primary physical custody and the child support award to her. It however remands on alimony. The case involves two children that have disabilities. The children are bonded with both parents. However, the parents cannot get along to coparent and the dad’s schedule makes his proposed 50/50 plan (which was also recommended by the custody evaluator) impossible without impacting his income.

 

Finding against the Custody Evaluator’s Recommendation:   “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.” State v. Maestas, 2012 UT 46, ¶ 200, 299 P. 3d 892. However, “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.” The court here found that a 2-2-3 schedule recommended by the evaluator was too disruptive. The daughter frequently gets sick, making moves difficult. In addition, frequent moves would negatively impact the children’s behavior. The children’s behavioral health depends on routine. The existing schedule was working well. The 2-2-3 schedule would increase opportunities for conflict between the parents. The 2-2-3 would also negatively impact the kids’ activity schedules.

 

Husband’s Work Schedule:     The court properly found that the husband did not show how he could maintain a 2-2-3 schedule without negatively impacting his employment, or how it would increase the wife’s opportunities for employment.

 

R.B. v. L.B., 2014 UT App 270

Utah Court of Appeals

Attorneys:        Steve S. Christensen

David M. Corbett

 

Summary:        This was a highly contentious custody battle that ended up with an agreement that the child would be with the mother for several years and then would switch to the father for junior high if it was found in the best interest of the child by a custody evaluator and then switch back to the mother if it was found in the child’s best interest by the custody evaluator.

 

Holdings (Automatic Transfers): An agreement will be void if it divests the Court of its powers to make custody determinations in the child’s best interests. In this case, the stipulation was not void as violating public policy because it was not actually automatic and instead required an evaluation of the best interest of the children and gave room for Court review.

 

(Custody Evaluation Failed – Dr. Heather Walker): Dr. Walker recommended that a change of custody to father was in the child’s best interest. The Court disagreed and denied the change in custody, leaving custody with the mother. “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. Woodward v. LaFranca, 2013 UT App 147, see also Tuckey v. Tuckey, 649 P.2d 88, 91 (Utah 1982) (remanding because trial court failed to make findings about why it rejected an evaluation); Sukin v. Sukin, 842 P.2d 922, 925-26 (Utah Ct. App. 1992)(same). The lower court found that Dr. Walker had only performed a follow-up evaluation of the child that did not include both the mother and father. The court also found that the testimony contradicted Dr. Walker’s findings. “The child, contrary to the opinion of Dr. Walker, is…happy and well adjusted.”

 

Alimony

Dahl v. Dahl, 2015 UT 23

Utah Supreme Court

Attorneys:        Steve S. Christensen

Craig L. Pankratz

Samuel J. Sorensen

Sara Pfrommer

Rosemond G. Blakelock

Ryan D. Petersen

 

Summary: This case involved years of contentious litigation between a doctor husband and a stay at home mother. It also involved the consolidation of a trust as marital property. The Court cited to the District Court’s statement that the case was a “train wreck.”

 

Holding: Although the wife may have been eligible to receive alimony, because her attorney failed to provide adequate financial disclosures, it was proper to deny her an award for alimony. The party seeking alimony bears the burden of demonstrating to the court that the Jones factors support an award of alimony. This demonstration cannot be made by conjecture, but instead, must be made with evidence of the expenses. Such evidence may include bank statements, receipts, and budgets. The evidence should show both the current financial needs as well as evidence of the prior standard of living.

 

Standard of Living: “The primary purpose of alimony is to enable the receiving spouse to maintain as nearly as possible the standard of livin enjoyed during the marriage and to prevent the spouse from becoming a public charge.” Connell v. Connell, 2010 UT App 139, ¶ 9, 233 P.3d 836. The court generally looks at the standard of living at the time of separation. However, “a district court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial.” U.C.A. § 30-3-5(8)(e). Therefore, the court needed evidence of the standard of living at the time of marriage as well as the current standard of living to conduct the analysis.

 

Equitable Distribution: The court did not error in finding that the property award was substantial enough to meet the wife’s obligations. It did not need to award alimony because the property award was sufficient. The court, as is normal, refused to equalize incomes.

 

Malpractice: The wife could not rely on a claim of malpractice to obtain an alimony award through the appeals process. Instead, the court found that no alimony was fair given her attorney’s missteps and that her remedy could be found in a malpractice lawsuit against her attorney.

 

Other Issues Discussed: In regards to the trust, the Court found that it was a necessary party because it included martial property and therefore without it in the marital trial, the estate could not be equitably split. However, it was proper to not allow the wife to join the trust into the divorce litigation only weeks before trial. It should have been joined as a party from the beginning.

 

Barrani v. Barrani, 2014 UT App 204

Utah Court of Appeals

Attorneys:        Cobie W. Spevak

Curtis L. Wenger

 

Summary:        This case involved physical custody, child support, and alimony. The court upholds the lower court’s decision to give the mother primary physical custody and the child support award to her. It however remands on alimony. The case involves two children that have disabilities. The children are bonded with both parents. However, the parents cannot get along to coparent and the dad’s schedule makes his proposed 50/50 plan (which was also recommended by the custody evaluator) impossible without impacting his income.

 

Holding on Alimony (wife’s ability to earn):   It was fine to impute wife’s income to $0 even though she volunteers in the community because she testified that the volunteer hours are flexible and she was able to bring the children with her, which would not be the case for a paid job. She has a bachelor’s degree in business management. However, other than some unpaid management of the parties’ rental properties, she worked outside of the home very little during the 11 year marriage. The district court awarded her $1,892/month for 11 years (the duration of the marriage).

 

Holding on Alimony (husband’s ability to earn):         It was proper for the trial court to include high and low income earning years in creating a three year average because it accounted for the unpredictability in his income. It was correct for the court to discount the husband’s monthly expenses by $395 that he stated he was paying to his parents for a car. The court is within its authority to discount expenses that do not have adequate proof.

 

Holding on Alimony (calculating need and ability to pay):      The court gives a good breakdown of how to calculate alimony. First, take wife’s unmet expenses, subtract what she will receive in child support. In this case, her unmet expenses are (after child support) $1,662. Then take the husband’s expenses (subtract the disallowed expenses) and that will give his ability to cover he unmet need.

 

Child Support

Barrani v. Barrani, 2014 UT App 204

Utah Court of Appeals

Attorneys:        Cobie W. Spevak

Curtis L. Wenger

 

Summary:        This case involved physical custody, child support, and alimony. The court upholds the lower court’s decision to give the mother primary physical custody and the child support award to her. It however remands on alimony. The case involves two children that have disabilities. The children are bonded with both parents. However, the parents cannot get along to coparent and the dad’s schedule makes his proposed 50/50 plan (which was also recommended by the custody evaluator) impossible without impacting his income.

 

Holding (regarding self-employed income):     “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income. Utah Code Ann. § 78B-12-207.” When a parent is self-employed, “gross income…shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts.” UCA § 78B-12-203(4)(a). However, “only those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.” Id. In addition, “not all business expenses claimed on a tax return constitute deductible business expenses under the statutes.” The husband in this case failed to meet his burden of justifying his business expenses of cell phone, home office, vehicle travel and depreciation, and meals. Although these may have been required to run his real-estate business, he did not proportion out the parts that were for personal use. It was his failure to include the full amounts, and the district court rightly found that they were not wholly for the purpose of his business. Therefore, he could not deduct them from him income for child support the way that he had for his taxes. It was reasonable for the court to require, for child support purposes, that the husband show that the expenses have been dedicated entirely to business use or to establish the proportion of personal and business use for each cost in order to establish that the associated expenses are necessary for the business rather than simply expenses that would have been incurred at the same level whether or not used for business.

 

Holding (regarding depreciation on business items):   The child support statute does not address the deduction of depreciation. The husband did not provide enough analysis to convince the appellate court to allow the deduction of depreciation.

 

Christian v. Christian, 2014 UT 283 (Utah App. 2014)

Utah Court of Appeals

Attorneys:        Brent D. Young

 

Summary: This is a standard divorce case that goes through several helpful areas of law.

 

Holding (Imputed Income & Voluntary Underemployment): The District Court incorrectly summarily held that wife could work 40 hours per week without any evidence on the record or findings of fact that demonstrated that ability. Instead, the only evidence on the record on the issue was that she had tried to get a full-time job and was unsuccessful.

 

The law on the issue begins with U.C.A. § 78B-12-203(7)(a).            That statute provides:

 

If income is imputed to a [spouse], the income shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earnings for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.

 

A spouse is voluntarily underemployed or unemployed when he or she intentionally chooses of his or her own free will to become so. Busche v. Busche, 2012 UT App 16, 272 P.3d 748.

 

“The trial court must enter not just a finding of voluntary unemployment or underemployment but specific, detailed findings as to the evidentiary basis for the imputation.” Rayner v. Rayner, 2013 UT App 269, 316 P.3d 455.

 

Child Care and Medical Expenses

 

Veysey v. Veysey, 2014 UT App 264

Utah Court of Appeals

Attorneys:        Rebecca Long Okura

Jenna Hatch

 

Summary:        This case deals with the intricacies of collecting on child care expenses.

 

Holding (Statute of Limitations):        The court held that child care is considered child support for this analysis and; therefore, the statute of limitations for child care expenses permits enforcement within the longer of four years after the youngest child reaches the age of majority or eight years from the date of entry of a sum-certain judgment. U.C.A. § 78B-5-202(1). The court rejected the father’s argument that the generic statute of limitations for judgments of eight (8) years should apply. The court gives a very detailed argument about why child care is considered child support even though parts of the statute state that it is not.

 

(Laches):          The commissioner incorrectly dismissed the argument of laches without making appropriate findings. “To successfully assert a laches defense, a defendant must establish both that the plaintiff unreasonably delayed in bringing an action and that the defendant was prejudiced by that delay.” Borland v. Chandler, 733 P.2d 144, 147 (Utah 1987).

 

Abuse and Neglect

 

In re M.H., 2014 UT 26 (Utah 2014)

Utah Supreme Court

Attorneys:        Mark W. Wiser

Sean D. Reyes

John M. Peterson

Martha Pierce

 

Summary: This case involved allegations of serious sexual abuse between a young child and a father. All parties stipulated to waive the requirement that the juvenile petition be adjudicated within sixty (60) days. Despite the stipulation, the lower court viewed the rule as a requirement and adjudicated the case before the father’s expert could fully investigate the issues.

 

Holding: In light of the stipulation to grant more time for expert discovery and the unchallenged waiver of the statutory timeframe, the juvenile court should have deemed the sixty day deadline to be off the table. The legislative intent was no longer relevant because the legislative decision had been waived by joint stipulation of all of the parties.

 

Concurrence (Justice Nehring): The waiver of the deadline is possible when the court follows the procedure dictated by rule 54. U.C.A. § 78A-6-309(2) and Utah Rule of Juvenile Procedure 54(c) and (d) mandate that the sixty (60) day time limitation for the final adjudication hearing in an abuse proceeding can be waived in a sexual abuse case only when the court makes a written finding containing a consideration of the best interests of the child and the existence of unavoidable circumstances that justify the continuance.

 

Interesting Side Quote: From Justice Nehring’s Decent – “While the role of the guardian ad litem is to represent the interests of the child, we have never said that the Guardian ad Litem’s imprimatur is the final word on the child’s best interests. If that were so, the court would never be required to make a finding concerning a child’s best interest-it would merely need to consult the Guardian ad Litem. This is of course not true.”

 

Protective Orders and Stalking Injunctions

 

M.K. v. Doyle, 2014 UT App 160

Utah Court of Appeals

Attorneys:        Michael J. Langford

Leslie W. Slaugh

 

Summary:        The District Court entered a stalking injunction against Mr. Doyle and the Appellate Court affirmed the decision. The question for the appellate court was whether an ongoing consensual relationship precluded a stalking injunction. The court found that it did not.

 

Holding:          In Towner v. Ridgeway, the Utah Supreme Court found that “the parties need not maintain an adversarial relationship between incidents and that intervening conciliatory gestures will not preclude a court form finding a course of conduct.” In M.K. v. Doyle, the court stated that “we are not convinced that even significant consensual contact necessarily negates the intent element of the stalking statute.” While the existence of a relationship undermines the argument for a stalking injunction, it does not preclude it as a matter of law. See Ellison v. Stam, 2006 UT App 150, ¶ 27. The lower court found that M.K. suffered from a battered woman type syndrome and that despite repeated sexual abuse, she remained in a relationship. She was entitled to a stalking injunction despite the consensual relationship.

 

Patole v. Marksberry, 2014 UT App 131

Utah Court of Appeals

Attorneys:        Michelle E. Lesue

Autumn R. Fitzgerald

 

Summary:        The question for the court is whether the petitioner needed to provide proof of past abuse and substantial likelihood of abuse in the future. The court rules adamantly that the statute requires only one of these be shown and that both are not required. The court reverses the district court’s denial of the protective order and remands for determination.

 

Holding:          The Cohabitant Abuse Act (CAA), U.C.A. § 78B-7-103(1), states that “any cohabitant who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of abuse or domestic violence, may seek… a protective order.”  The court finds that the statute is clear in creating an alternative showing of past abuse OR future abuse and that the petitioner need not show both. The court explains that its decision in Bailey v. Bailey, 2001 UT App 34 creates confusion on this issue. However, the Utah Supreme Court clarified the issue.

 

“This test [in Bailey], literally applied, would directly conflict with the plain meaning of…the CAA, which does not require a showing of future abuse if the petitioner has shown past abuse.” “Despite the clarity of the CAA’s language, the definitiveness of the Utah Supreme Court’s holding in its Bailey decision, and this court’s subsequent rulings consistent therewith, the flawed test this court announced in its Bailey decision, which added a requirement not in the statute, continues to circulate. For example, the editors of both LexisNexis and Westlaw include the incorrect three-part test in their annotated versions of the Utah Code.” “Therefore, we reiterate that the simple test enshrined in plain terms in the statute adopted by the Utah Legislature, as recognized by the Utah Supreme Court in its Bailey opinion, is the one, true standard for analyzing petitions for protective orders under the CAA.”

 

Sheeran v. Thomas, 2014 UT App 285

Utah Court of Appeals

Attorneys:        Elizabeth Hunt

Daniel James Sheeran

 

Summary:        The lower court granted a stalking injunction based on two incidents of the Respondent honking at the Petitioner and then the Respondent blocked the road and yelled at the Petitioner. The appellate court agreed and went through the typical stalking injunction analysis to show that the decision was accurate.

 

Holdings:         Federal law does not prohibit everyone with a stalking injunction to possess a firearm. Instead, United States Code title 18 section 922 prohibits a person subject to a stalking injunction for the protection of an “intimate partner” from possessing a firearm. 18 U.S.C. § 922(g)(8)(2012). In this case, they were not intimate partners and so the generic form used by the court was incorrect. The form has since been changed to say that it “may” prevent the possession of a firearm.

 

In addition, the court clarified that “reasonable person” in stalking is determined by an objective test.

Retirement, Pensions, Stocks, and Other Investments

 

Johnson v. Johnson, 330 P.3d 704, 2014 UT 21 (Utah 2014)

Utah Supreme Court

Attorneys:        Troy L. Booher, Erin K. Burke

Bryce M. Froerer

 

Summary:        This case involved a ten (10) year marriage and the pension of the husband who was in the Air Force. The questions stemmed from the wife who waited many years to seek payment of the pension fund. The questions were complicated by the fact that the decree of divorce was non-specific in how much of the pension she was to receive. In addition, there was dispute about whether the wife was entitled to the pay increases that impacted the pension that the husband had received since the divorce.

 

Basic Rule for Retirement: A former spouse is entitled to an equitable distribution of an employee spouse’s retirement or pension benefits that “accrue in whole or in part during the marriage.”

 

Time Rule Formula (established by Woodward): First, find the marital fraction by dividing the number of years (or months) that the employee spouse has earned toward the pension during the marriage by the number of years (or months) of total service toward the pension. The marital fraction is then multiplied by the employee spouse’s monthly benefit that is subject to equitable distribution. Each spouse is then awarded one-half of the marital interest in the pension that is subject to equitable distribution.

 

Post-Divorce Increases in Pay or Rank: The district court should consider the extent to which the property was acquired during the marriage and the ultimate source of the property. In the context of pension benefits, this will require the court to consider how the trajectory of the employee spouse’s career intersected with the marriage and the extent to which the marriage contributed to the employee spouse’s pay grade at retirement. If, for example, the parties are married for a significant portion of the employee spouse’s career, it is much more likely that the nonemployee spouse’s contributions impacted the trajectory of the employee spouse’s career in a way the court should credit. This would be especially true in circumstances in which the parties were married while the employee spouse underwent specialized training or schooling that would further the career. The court must also consider different impacts on different types of pay, for example, an automatic pay raise for living expenses will be treated differently than a merit based increase. Remanded for fact finding.

 

Extension of Seeley: The rational of Seeley v. Park, which was that installments under a decree of divorce for alimony or support of minor children become final judgments as soon as they are due and cannot thereafter be modified, is extended to pension payments.

 

Specificity in the Decree:        The wife’s original attempt to withdraw from the pension was denied by the agency because of the lack of specificity in the final decree. The decree simply stated that “1/2 of 10 years of Mr. Johnson’s military retirement.” The order should have provided for a division of retired pay by means of a formula wherein the elements of the formula are specifically set forth or readily apparent.

 

Debt

Dahl v. Dahl, 2015 UT 23

Utah Supreme Court

Attorneys:        Steve S. Christensen

Craig L. Pankratz

Samuel J. Sorensen

Sara Pfrommer

Rosemond G. Blakelock

Ryan D. Petersen

 

Summary: This case involved years of contentious litigation between a doctor husband and a stay at home mother. It also involved the consolidation of a trust as marital property. The Court cited to the District Court’s statement that the case was a “train wreck.”

 

Holdings: Under U.C.A. § 30-2-5(1)(b), neither spouse is personally liable for the separate debts incurred by the other spouse during the marriage. But both spouses are responsible for family expenses under U.C.A. § 30-2-9(1). Nevertheless, there is no fixed formal for determine the division of debts in a divorce action.

 

Paternity

 

J.P.R. v. L.M, 2014 UT App 191

Utah Court of Appeals

Attorneys:        James M. Park

Christa E. Guymon

Willard R. Bishop

 

Summary:        This case deals with a husband and wife as well as a third party who alleged to be the biological father of the child. The husband, under the UUPA, was the presumed father and the alleged biological father sought to have his paternity adjudicated. The court affirmed the dismissal of J.P.R.’s petition because he lacked standing under the statute. The ruling was based on the precedent in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, and the Utah Uniform Parentage Act.

 

Holding:          The Utah Uniform Parentage Act, U.C.A. § 78B-15-601 to 623, governs standing in paternity cases. It overrides common law doctrines on the issue in this case. Standing to challenge a presumed father’s paternity is governed by section 607, not the general standing provision of section 602. A child born into an intact marriage will have a presumed father, the husband. That presumption cannot be attacked by a third party. Therefore, the alleged biological father did not have standing to ask the court for a DNA test nor a best interest analysis. The legislation on this issue is meant to keep marriages intact and to encourage husbands to raise children born as issue of the marriage, even if they are not biologically theirs.

 

J.L.C. v. K.A.A., 2014 UT App 245

Utah Court of Appeals

Attorneys:        Rick C. Mellen

Jack B. Burns

 

Summary:        This case answers the question about an unwed father’s rights to assert paternity under the Utah Uniform Parentage Act (UUPA).

 

Holding:          The unwed father does not have standing to assert a paternity action. This case has no analysis and instead refers the reader to a detailed analysis of the issue performed in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084. The man married to the mother is the presumed father. “The Utah Legislature intended to encourage a presumed father to stay married to the mother and to raise the child in an intact marriage…accordingly, unless the couple decides to seek a divorce, section 607 limits the persons with standing to raise the paternity of the child to the presumed father and the mother.”

 

Termination of Parental Rights

 

In re Adoption of A.M.O., 2014 UT App 171

Utah Court of Appeals

Attorneys:        Jack M. McIntyre

 

Summary:        The stepmother sought to terminate the mother’s rights so that the stepmother could adopt the child. The district court dismissed the petition. The appellate court reversed and remanded the issue because the district court did not go through the statutory factors for the best interest of the child.

 

Holding:          In evaluating a petition to terminate parental rights, the court engages in a two-step analysis. The first step requires the court to find the parent unfit or incompetent based on a ground enumerated in U.C.A. § 78A-6-507. In re Adoption of T.H., 2007 UT App 341. It is prima facie evidence of abandonment that a parent…has failed to communicate with the child by mail, telephone, or otherwise for six months; or has failed to have shown the normal interest of a natural parent, without just cause. At that point, the burden shifts to the mother to demonstrate that during that period of time there were not grounds for terminating her parental rights. See In re K.J., 2013 UT App 237 (while the petitioner bears the ultimate burden of proving the grounds for termination by clear and convincing evidence, once evidence is presented that would justify termination, the burden shifts to the parent to persuade the court that the petitioner had not established ground for termination by clear and convincing evidence). The second step is to determine whether or not termination is in the child’s best interest. The court in this case determined that the factors for termination had been met but that the step mother had not provided sufficient evidence to prove the best interest of the child standard. However, the court failed to go through the elements of the best interest standard in its findings of fact and conclusions of law; and therefore, that determination was inadequate. The factors are given in In re D.R.A., 2011 UT App 397.

 

            “As a practical matter, where grounds for termation are established, the conclusion that termination will be in the child’s best interest follows almost automatically.” “Only rarely will a child’s best interests not be served by terminating the rights of an unfit parent.” The case then gives several examples of cases where the parent is unfit but termination was not in the child’s best interest.

 

In re A.C., 2014 UT App 157

Utah Court of Appeals

Attorneys:        Andrew J. Heyward

Carol L.C. Verdoia

Martha Pierce

 

Summary:        The Appellate Court affirmed the termination of the mother’s parental rights. Under Utah Code § 78A-6-507, the finding of a single enumerated ground will support the termination of parental rights. The court found that it was not enough that the mother had participated in parenting classes at her own expense and had prepared her home for the child. The court found it more compelling that the mother had continued her relationship with the child’s father, who was a registered sex offender, and that her statements that she would divorce or distance herself from him were not credible. The court also found that there were concerns about the mother’s ability to parent the child due to her volatile moods, her past history of relationships with men who are violent or have alcohol problems, and her lack of insight into the relationship between her mental health issues and her parenting ability. The court also mentioned the fact that the mother had already lost four children through relinquishment as a concern.

 

Real Property

Dahl v. Dahl, 2015 UT 23

Utah Supreme Court

Attorneys:        Steve S. Christensen

Craig L. Pankratz

Samuel J. Sorensen

Sara Pfrommer

Rosemond G. Blakelock

Ryan D. Petersen

 

Summary: This case involved years of contentious litigation between a doctor husband and a stay at home mother. It also involved the consolidation of a trust as marital property. The Court cited to the District Court’s statement that the case was a “train wreck.”

 

Commingling real property: A spouse can maintain the separate identity of premarital property by utilizing section 1031 exchanges to avoid commingling separate property with marital property. For example, a spouse may use the proceeds of the sale of a house he or she inherited to purchase another property through a section 1031 exchange, allowing the party to retain the same separate characteristics as the original house.

 

Christian v. Christian, 2014 UT 283 (Utah App. 2014)

Utah Court of Appeals

Attorneys:        Brent D. Young

 

Summary: This is a standard divorce case that goes through several helpful areas of law.

 

Holding (Inherited Property):  The wife did not adequately show that the district court failed in its analysis of comingling of the home. Instead, the evidence showed that husband provided a substantial amount of labor for the “enhancement” and “maintenance” of the home. Also, the husband and wife used over $15,000 from the parties’ co-mingled accounts to remodel the kitchen. Therefore, it was marital property and subject to equitable division.

 

The law on inherited property for this case is that property acquired by inheritance during the marriage is generally awarded to the inheriting spouse. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). However, the general rule is subject to at least two exceptions: (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges. Id.

 

(Proportional Interest in Home) The Court denies wife’s argument that even if husband improved the home, he did not deserve a full 50% of the equity in it. The Court states that there is very little case law on the issue, but cites to Henshaw v. Henshaw, 2012 UT App 56, 271 P.3d 837. That case found that even though the house depreciated in value since the wife lived there, she was still entitled to 50%. “The district court’s ruling was based on the equities of the parties’ circumstances rather than on a mathematical calculation.” Id.

 

Equitable Distribution of Personal Property

 

Dahl v. Dahl, 2015 UT 23

Utah Supreme Court

Attorneys:        Steve S. Christensen

Craig L. Pankratz

Samuel J. Sorensen

Sara Pfrommer

Rosemond G. Blakelock

Ryan D. Petersen

 

Summary: This case involved years of contentious litigation between a doctor husband and a stay at home mother. It also involved the consolidation of a trust as marital property. The Court cited to the District Court’s statement that the case was a “train wreck.”

 

Holdings: Before the district court distributes marital assets, it must 1) identify the property in dispute and determine whether it is marital or separate property, 2) consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally, 3) assign values to each item of marital property so that a distribution strategy…can be implemented, 4) distribute the marital assets consistent with the distribution strategy. Quoting Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 15, 179 P.3d 476.

 

Marital Property: “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Berger v. Berger, 713 P.2d 695, 697 (Utah 1985). “Allowing both spouses access to marital funds during the pendency of a divorce promotes the goal of a ‘fair, just, and equitable.’ Distribution of marital property.” Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

 

Comingling Separate Property: Generally, premarital property, gifts, and inheritances are considered separate property, and the spouse bringing such property into the marriage may retain it in the event of a divorce. Keiter v. Keiter, 2010 UT App 169. But premarital property may lose its separate character where the parties have inextricably commingled it with the marital estate, or where one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property. Dunn, 802 P.2d at 1320. The courts look to the party’s actions as a manifestation of a spouse’s intent to contribute separate property to the marital estate. Kimball v. Kimball, 2009 UT App 233. Dr. Dahl’s property remained separate. He withdrew money from his IRA accounts so that he could pay off a home equity loan secured by the marital home. After paying off the loan, Dr. Dahl replaced the amounts withdrawn from the IRA accounts with funds from the marital bank account. This transaction is best characterized as a loan from Dr. Dahl to the marital estate, which was in turn repaid with marital funds. There is nothing about these transactions suggesting that Dr. Dahl intended to commingle his IRA funds with the marital estate. And Dr. Dahl’s property did not become so “inextricably comingled…into the marital estate” that the district court was incapable of tracing it. Dunn, 802 P.2d at 1321.

 

Trust Accounts: The Court refused to apply Nevada law to the trust account because it would violate Utah’s public policy of equitability. “Utah law has a long-established policy in favor of the equitable distribution of marital assets in divorce cases.” See U.C.A. § 30-3-5(1). “[T]he correct view under our law is that [family law proceeding] encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived.” The purpose of the law is to “empower courts to enforce, after divorce, the duty of support which exists between a husband and wife.” To “achieve a fair, just, and equitable result between the parties.” Utah has an interest in ensuring that “divorcing spouses both retain sufficient assets to avoid becoming a public charge.”

 

“The essential criterion is whether a right to the benefit or asset has accrued in whole or in part during the marriage. To the extent that the right has so accrued it is subject to equitable distribution.”

 

Trust property: The wife’s marital property did not lose its marital designation when it was conveyed into the trust. She therefore should receive an equitable portion of the property.

 

Grandparent’s Rights

 

D.A. and S.A. v. D.H., 2014 UT App 138

Utah Court of Appeals

Attorneys:        Daniel R. Cragun

  1. Jarom Bishop

Ryan J. Stanger

Colby B. Vogt

Steven C. Russell

 

Summary:        Grandparents sought custody of their grandchildren after their mother, the grandparent’s daughter, died. The appellate court upheld the district court’s decision to deny their request because they failed to show that the father was absent.

 

Holding:          The court refused the grandparent’s interpretation of the statute, which required only the showing that one parent was absent. Instead, the court held that the statute must be applied to the parent that was not absent, the father.

 

Under the Custody and Visitation for Persons Other than Parents Act, U.C.A. §§ 30-5a-101 to -104, the grandparents failed to rebut the presumption that “a parent’s decision are in the child’s bests interests.” Under the Act, “parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children.” The way to rebut the presumption is to show, by clear and convincing evidence, a) that a person has intentionally assumed the role and obligations of a parent; b) the person and the child have formed an emotional bond and created a parent-child type relationship; c) the person contributed emotionally or financially to the child’s well-being; d) assumption of the parent role is not the result of a financially compensated surrogate care arrangement; e) continuation of the relationship between the person and the child would be in the child’s best interests; f) loss or cessation of the relationship between the person and the child would be detrimental to the child; and g) the parent: i) is absent; or ii) is found by a court to have abused or neglected the child.

 

In Troxel v. Granville, 530 U.S. 57 (2000), the court stated that “the interest of parents in the care, custody and control of their children…is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court.”

 

Contempt and Orders to Show Cause

 

In re M.H., 2014 UT 26 (Utah 2014)

Utah Supreme Court

Attorneys:        Mark W. Wiser

Sean D. Reyes

John M. Peterson

Martha Pierce

 

Summary: This case involved allegations of serious sexual abuse between a young child and a father. All parties stipulated to waive the requirement that the juvenile petition be adjudicated within sixty (60) days. Despite the stipulation, the court viewed the rule as a requirement and adjudicated the case before the father’s expert could fully investigate the issues.

 

Contempt: The lower court recognized that it had ordered the mother to make the children available for interviews with the father’s expert and that she had failed to make them available. However, because the previous order had not been reduced to writing, the court simply clarified the order and did not hold the mother in contempt of court.

 

Attorney Fees and Court Costs

 

Dahl v. Dahl, 2015 UT 23

Utah Supreme Court

Attorneys:        Steve S. Christensen

Craig L. Pankratz

Samuel J. Sorensen

Sara Pfrommer

Rosemond G. Blakelock

Ryan D. Petersen

 

Summary: This case involved years of contentious litigation between a doctor husband and a stay at home mother. It also involved the consolidation of a trust as marital property. The Court cited to the District Court’s statement that the case was a “train wreck.”

 

Holdings: The husband paid for the custody evaluation, guardian ad litem, and supervised visits out of the marital funds. Then, the Court reduced the wifes final distribution by her half of these expenses. The Supreme Court found this to be clear error because it caused her to pay her half twice. It is correct that the parties should each be responsible for half of these fees; however, when the husband paid them out of the marital funds, each parties was effectively taking half of the hit. The wife, however, was required to pay the full cost of the daily transcripts that she ordered to the tune of $35,217. The Court found that transcript costs will be charged to the party that orders them.

 

Attorney Fees: Ms. Dahl’s attorney asked the court for $2,186,568. The court refused to award her any attorney fees because she failed to demonstrate a financial need and because her attorney’s fees were unreasonable.

 

General Rule for Attorney Fees: In Utah, attorney fees are awardable only if authorized by statute or contract. Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988). U.C.A. § 30-3-3(1) authorizes courts to award attorney fees and costs in divorce cases if doing so would “enable the other party to prosecute or defend the action.” “Such an award must be based on evidence of the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees.” Levin v. Carlton, 2009 UT App 170.

 

Reasonableness of Attorney Fees: Reasonable attorney fees are not measured by what an attorney actually bills, nor is the number of hours spent on the case determinative in computing fees. A court may consider, among other factors, the difficulty of the litigation, the efficiency of the attorneys in presenting the case, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality for similar services, the amount involved in the case and the result attained, and the expertise of the attorneys involved. Cabrera v. Contrell, 694 P.2d 622 (Utah 1985); see also Utah R. Prof’l Conduct R. 1.5(a).

 

Parrish v. Wyttenbach, 2014 UT App 181

Utah Court of Appeals

Attorneys:        Michael R. Shaw

 

Summary:        The appellate court affirmed the district court’s decision to deny father’s request to register a Texas judgment under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), U.C.A. §§ 78B-13-101 to 318.

 

Holding:          The district court granted the mother attorney fees under UCCJEA, U.C.A. § 78B-13-312 (providing for an award to the prevailing party of “necessary and reasonable expenses”). “We interpret attorney fee statutes broadly so as to award attorney fees on appeal where a statute initially authorizes them…when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998).

 

Domesticating/Registering a Case (UCCJEA/UFJA)

 

Parrish v. Wyttenbach, 2014 UT App 181

Utah Court of Appeals

Attorneys:        Michael R. Shaw

 

Summary:        The appellate court affirmed the district court’s decision to deny father’s request to register a Texas judgment under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), U.C.A. §§ 78B-13-101 to 318.

 

Holding:          The district court properly denied the request to register the foreign judgment because the father failed to file certain averments that are required for the procedure. As a general matter, foreign judgments may be filed in Utah under the provisions of the Utah Foreign Judgment Act (the UFJA), U.C.A. §§ 78B-5-301 to 307, after which the foreign judgment shall be treated as a judgment of a district court of Utah. However, the UCCJEA imposes additional requirements that the father did not meet when making the application. See U.C.A. § 78B-13-305(1)(b).

 

Even had the father properly registered the Texas judgments under the UCCJEA, this alone would not divest the Texas court of jurisdiction and give Utah jurisdiction to modify the prior child custody determinations. See U.C.A. § 78B-13-306(2) (stating that a court of this state shall recognize and enforce, but may not modify except in accordance with Part 2, Jurisdiction, a registered child custody determination of another state.)

 

Civil Procedure

 

R.B. v. L.B., 2014 UT App 270

Utah Court of Appeals

Attorneys:        Steve S. Christensen

David M. Corbett

 

Summary:        This was a highly contentious custody battle that ended up with an agreement that the child would be with the mother for several years and then would switch to the father for junior high if it was found in the best interest of the child by a custody evaluator and then switch back to the mother if it was found in the child’s best interest by the custody evaluator.

 

Holding (Finality of Custody Case):    The res judicata aspect of the rule favoring finality of judgments must always be subservient to the best interests of the child and that even when an initial decree has adjudicated the best interests of a child, a subsequent proceeding can reopen that decree…if the circumstances pertaining to the decree have subsequently changed, so that a new determination should be made based on a full development of all material facts. Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989).

 

Dahl v. Dahl, 2015 UT 23

Utah Supreme Court

Attorneys:        Steve S. Christensen

Craig L. Pankratz

Samuel J. Sorensen

Sara Pfrommer

Rosemond G. Blakelock

Ryan D. Petersen

 

Summary: This case involved years of contentious litigation between a doctor husband and a stay at home mother. It also involved the consolidation of a trust as marital property. The Court cited to the District Court’s statement that the case was a “train wreck.”

 

Attorney Liens in Domestic Cases: U.C.A. § 38-2-7(9) does not authorize an attorney to acquire a lien in the representation of a client in a domestic relations matter unless a final order of divorce has been secured.

 

Contingency Cases Prohibited in Domestic Cases: The rules of professional conduct do not allow for an attorney to base their fees on the outcome of a case. That is true even if the attorney is billing an hourly rate, if that attorney seeks to collect that debt from the proceeds of the case.

 

Expert Disclosures: The court properly excluded Ms. Dahl’s experts because of her attorney’s failure to properly disclose the experts or provide expert reports pursuant to Rule 26.

 

Gardiner v. Vanderwerff, 2014 UT 56 (Utah 2014)

Utah Supreme Court

Attorneys:        Robert J. Fuller, for appellant

Samuel A. Hood, for appellees

 

Summary: This was a case brought by a romantic partner of three (3) years. Ms. Gardner asked the court to grant a common law marriage after her partner, Mr. Vanderwerff, passed away. The district court initially granted her petition; however, it later allowed Mr. Vanderwerff’s cousins to intervene. After granting intervention, the court dismissed her petition for failing to serve the petition on the cousins.

 

Holding on Service: Service to the cousins was not required because Ms. Gardiner was the personal representative of the estate and had, in that role, waived service.

 

Sua Sponte Dismissal: The court interprets rule 4(b)(i) to allow a court to raise the issue of sufficiency of service of process upon its own initiative, but it may not dismiss an action on that basis without first giving the plaintiff notice and an opportunity to raise defenses.

 

Service: Rule 4(b)(i) requires that a petition for marriage declaration be served on the putative spouse, here Mr. Vanderwerff. However, when that person has passed away, their personal representative must be served. In this case, Ms. Gardner was both the petitioner and the personal representative and she had authority to waive service.

 

Johnson v. Johnson, 330 P.3d 704, 2014 UT 21 (Utah 2014)

Utah Supreme Court

Attorneys:        Troy L. Booher, Erin K. Burke

Bryce M. Froerer

 

Summary:        This case involved a ten (10) year marriage and the pension of the husband who was in the Air Force. The questions stemmed from the wife who waited many years to seek payment of the pension fund. The questions were complicated by the fact that the decree of divorce was non-specific in how much of the pension she was to receive.

 

Statute of Limitations for Judgments:  An action may be brought within eight (8) years upon a judgment or decree. The court must determine whether this is a discrete or continuing claim. In this case, each pension payment was subject to its own discrete statute of limitations.

 

Kartchner v. Kartchner, 2014 UT App 195

Utah Appellate Court

Attorneys:        Ben W. Lieberman

Kenneth A. Okazaki

Nathan D. Thomas

Stephen C. Clark

 

Summary:        Husband and wife finalized a stipulation but then reconciled, never finalizing the divorce. The parties then broke up again and the wife finalized the divorce, using the outdated stipulation, all the while pretending that she was continuing negotiations with the husband. The husband waited several months before raising the issue to the court.

 

Holding (Husband’s Failure to File a Rule 60(b) Motion):      Fraud on the Court is an independent action that may be brought later than the Rule 60(b) deadline. A rule 60(b) motion for fraud on the court shall be made within a reasonable time, that is, not more than 90 days after the judgment. However, the rule does not preempt the court from entertaining an independent action to relieve a party from a judgment for fraud upon the court. “Rule 60(b) expressly recognizes and preserves the court’s historic powers to relieve a party from the operations of an unconscionable judgment or order.” St. Pierre v. Edmonds, 645 P.2d 615 (Utah 1982) (allowing a wife to come in and undo a divorce based on stipulation two years after the divorce entered based on the fact that she was harassed into signing the stipulation). There is no an unlimited statute of limitations for a claim for fraud on the court. Instead, the timing on a claim of Fraud on the Court is governed by equitable principles such as laches.

 

Intervening Parties

 

Gardiner v. Vanderwerff, 2014 UT 56 (Utah 2014)

Utah Supreme Court

Attorneys:        Robert J. Fuller, for appellant

Samuel A. Hood, for appellees

 

Summary: This was a case brought by a romantic partner of three (3) years. She asked the court to grant a common law marriage after her partner, Mr. Vanderwerff, passed away. The district court initially granted her petition; however, it later allowed Mr. Vanderwerff’s cousins to intervene. After granting intervention, the court dismissed her petition for failing to serve the petition on the cousins.

 

Intervention Holding: The lower Court failed to make findings on the necessary elements for granting intervention, especially timeliness. Reversed without prejudice and remanded.

 

Rule for Intervention:   A party attempting to intervene under rule 24(a) must establish four elements:

  1. That its motion was timely;
  2. That it has an interest relating to the property or transaction which is the subject of the action;
  3. That the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and,
  4. That its interest is not adequately represented by existing parties.

 

Rule for Timeliness in Interventions: As a general rule, intervention is no to be permitted after entry of judgment. We regard postjudgment intervention with disfavor due to it tendency to prejudice the rights of existing parties and unduly interfere with the orderly process of the court. Thus, we are reluctant to make exceptions to the general rule.

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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