Utah Divorce/Utah Child Custody Update — 2017
Lindsey v. Lindsey, 2017 UT App 38.
The Court of Appeals affirmed the trial court’s granting of a motion for summary judgment determining that husband’s premarital business interests remained his premarital separate property despite the increase in value during the marriage. At the time the parties were married, husband had an interest in a few companies, which, during the marriage, were merged into one company and husband became a substantial owner of that company. By the time the parties began divorce proceedings, husband’s interest had approximately doubled in value. For compensation, husband not only received a large salary and cash dividends, but he also received more shares of the business rather than cash. Wife did not work outside the home. Wife assisted in entertaining clients of the business but otherwise did not provide services to the business. Husband moved for partial summary judgment seeking an order that his business remained his premarital separate property. Wife argued that there was commingling of marital funds into the business, that she contributed and enhanced the value of the business through her efforts, and/or that she should be entitled to an interest to achieve a fair result. The trial court found that wife’s claim on commingling was unsupported because she failed to present evidence of the cash contribution that she alleged and the shares received by husband during the marriage was a return on his premarital value rather than a marital distribution. The trial court further found that wife had not involvement with the actual running of the business and entertaining clients was insufficient. Finally, the trial court determined that there were no extraordinary circumstances involved that would allow the court to invade husband’s separate property. After a trial on the remaining issues, the trial court awarded wife substantial alimony and most of the property and not much of the debt, and awarded husband less of the property and most of the debt.
On appeal, wife claimed the trial court erred in granting summary judgment awarding husband the business as premarital property. The Court of Appeals discussed the standard of review on a summary judgment and notes that it is an unsettled question as to which standard applies to a granting of summary judgment, deference or correctness, and it is worth reading the discussion. However, after the discussion, the Court of Appeals determines that they don’t need to resolve that unsettled question because under either standard they affirm.
Generally, the overriding consideration in awarding martial property is an equitable division. The trial court must categorize property: martial and separate. Separate property which is premarital, gifts, and inheritance also includes all appreciation on that property. Once categorized, the trial court should equally divide the martial property and not divide the separate property at all. However, in extraordinary circumstances, a trial court can divide separate property. There are three circumstances that would allow a trial court to divide separate property: when separate property has lost its identity due to commingling; when the other spouse has augmented, maintained, or protected the separate property; and in extraordinary circumstances when equity so demands. The Court of Appeals determined that the trial court did not err in finding that there was no contribution to the asset by wife. What consists of contributions to the asset include efforts and expenses that contribute to the enhancement, maintenance, or protection of the asset. Or prudent investment that substantially increases the value, or marital debt incurred for the benefit of the separate property. Additionally, when the non-owning spouse works for the business and is not paid a salary, or when the owning spouse does not take a salary so that those funds can be reinvested can work to support an equitable division. But, taking on more household or family responsibilities does not support such a claim. Finally, the Court of Appeals determined that wife failed to demonstrate any basis for her claim for extraordinary circumstances that would support a determination that she should share in the value of the premarital business. The claim that the overall division was disparate was not compelling because the general rule is that marital property is divided equally but separate property is not divided at all.
Smith v. Smith, 2017 UT App 40.
The Court of Appeals affirmed the trial court’s determination that wife’s inheritance did not lose its separate property identity based upon the terms of a family trust. During the parties’ marriage, wife’s mother created a limited family partnership which included wife and her siblings as limited partners. Subsequently, husband and wife created a family trust which was comprised of two separate trusts, one for husband and one for wife. Further, the family trust included a provision that all assets transferred to the trust would belong to the individual trust of the party if so designated, but if not designated would be allocated equally between the two trusts. The family trust included a schedule which set forth the specific ownership categories of property. This schedule specifically stated that financial accounts existing at the time would be owned equally between the two trusts along with “all new accounts … and all other financial institutions in which new accounts are opened in the future.” The trust also set forth that wife’s trust would own her interest in the family limited partnership. After the trust was created, wife’s mother died and she inherited a large distribution from the family limited partnership. Wife deposited the funds into two money market accounts, in her separate name. At trial, husband argued that although the inheritance was wife’s separate property, that separate property lost its separate identity when it was deposited in the money market accounts because the terms of the trust set forth that any new accounts opened would belong jointly between each party’s trust. The trial court disagreed and determined that the money was separate property of wife even if she deposited the money into a bank account in wife’s name. The trial court awarded the entire inheritance to wife.
Husband appealed. The sole issue on appeal was whether the trial court properly awarded wife her entire inheritance. Husband did not assert that the inheritance was not wife’s separate property, rather he asserted that the trial court erred by not finding that the separate property lost its identity when wife put the money in a bank account because the terms of the trust set forth that any new bank accounts would be jointly owned by the two trusts. In other words, husband conceded that wife owned the inheritance but that he owned one-half of any bank account that she ever opened and so once she put the money in the bank it became one-half his. The narrow issue on appeal was whether the separate property lost its identity when wife deposited it in the bank. The Court of Appeals held that it did not. When reviewing the terms of the trust, the court must look at the four corners to determine the parties’ intentions which are controlling. In this case, the trust specifically stated that any new bank accounts at any institution would be jointly owned between the two trusts. The Court of Appeals recognized that standing alone, that would be an accurate determination, however, the trust also set forth that all right and title to the family limited partnership would belong to wife’s trust solely. Discussing whether there was a conflict between these two provisions, the Court of Appeals set forth that in the event of a conflict between two provisions of a contract, the general provisions are restricted by the specific provisions. In this case, the general provision that all bank accounts created in the future belong to the two trusts jointly was restricted by the specific provision that the family limited partnership belonged solely to wife’s trust. Under husband’s suggested reading, however, the specific provision would be rendered meaningless. Husband argued that was not true because she could have cashed the check and used it but when she put it in a bank account it triggered the provision that made it joint. The Court of Appeals rejected that argument based upon the pragmatic nature of dealing with money without using any financial institution. Husband’s suggested reading would render an absurd result to wife’s detriment of not being able to use a bank account to manage her money.
Blocker v. Blocker, 2017 UT 10.
Father appealed the trial court’s ruling changing mother’s parent-time from supervised to unsupervised. The parties had one minor child who was approximately four months old at the time of the divorce proceedings. The court awarded the parties joint legal and joint physical custody of the child but approximately five years later modified that order to sole legal and physical to father due to mother’s history of non-cooperation, non-payment of professionals, and complete failure to co-parent. The court determined that although the evaluator and the child’s therapist recommended that mother’s parent-time should be supervised, the trial court determined that supervision would not be practical for financial reasons and ordered that mother’s parent-time be unsupervised only if she retained a special master, participated in individual therapy, and participated in joint therapy with the child. The court determined that until mother provided verification of those terms, her parent-time would continue to be supervised. Weirdly, about four years later, mother filed a motion to clarify or modify parent- time for which the court held a scheduling conference at which the court indicated to mother to file an order to show cause. At the order to show cause hearing, the court indicated that an order to show cause was inappropriate to clarify the existing order and there was no petition to modify pending. Then, at another hearing, the court sua sponte determined that the order to show cause was actually a petition to modify. The trial court then scheduled another status conference where mother appeared with a lawyer and father appeared pro se but the trial court then proceeded to take evidence on the petition to modify. Except, the trial court continued that hearing to allow father to present evidence but entered a temporary order granting mother unsupervised parent- time. Then, a year later, the trial court held another hearing where it made the temporary order granting unsupervised parent-time permanent. Father raised an objection to the court modifying the order without finding a change in circumstances but the trial court overruled his objection stating it had wide discretion. The trial court made the temporary order permanent and entered no findings of fact. Father appealed.
The Court of Appeals remanded to the district court to enter findings of fact. The Court of Appeals set forth that in order to modify parent-time a court must make a determination that there has been a material change in circumstances. As set forth in Hogge v. Hogge, there is a two-step process when modifying a custody award. First, there must have been changes in circumstances upon which the previous award was based that are substantial enough to justify reopening custody. Second, the court must determine the custody arrangement that serves the child’s best interests. A modification of parent-time rights generally requires this same analysis however, a material change in circumstances regarding parent-time is different than a material change in circumstances regarding custody. Although the inquiry does not rise to the level when modifying parent-time as it does for modifying custody, there still must be a change in circumstances. So, a district court need not find a substantial and material change in circumstances to alter parent-time, it is still required to find some change in circumstance. Because the trial court made no findings of any change of circumstances, and in fact, no findings whatsoever, the Court of Appeals was unable to conduct a review and as such remanded to the trial court. (Back to the trial court where this litigation has been pending for 15 years–as long as this child has been alive.)
Thayer v. Thayer, 2016 UT App 146.
The Court of Appeals reversed the trial court’s determination that husband’s military retirement pay would be divided after the deductions for taxes by clarifying Johnson v. Johnson, 2012 UT App 22 and how to apply the Uniformed Services Former Spouses’ Protection Act (USFSPA) to the division of military retired pay in the context of a divorce.
The parties were divorced by a stipulated decree in which they agreed they would divide their respective pension plans. Husband worked for the military and wife had pension plans through her employment as a public school teacher. When the trial court entered the order dividing wife’s pension plans, it determined that husband would receive one-half the gross amount. When dividing husband’s military retirement, however, the court determined that wife would receive one-half the net amount after deductions for taxes. The trial court determined that because of the Johnson case, it was required to deduct for taxes.
Wife appealed and argued that the trial court misinterpreted Johnson as mandating that Utah courts must divide military retirement on a net basis. The Court of Appeals agreed. The trial court erred in interpreting Johnson to mandate a division of the retirement on a net basis. The genesis of the USFSPA was discussed by noting the early case in which the United States Supreme Court determined that a state could not divide military retired pay. Congress then enacted the USFSPA to avoid the result that a spouse could receive no portion of the retirement. Later, the United States Supreme Court determined that although a state can divide the payment, it must do so consistent with federal law. As such, a state may only divide the portion that the USFSPA designates as disposable.
Johnson was decided by applying the existing federal law at the time of the parties’ divorce, 1984, and was remanded to the trial court to apply the law existing at that time to the husband’s military retirement pay. The remand was required because the trial court had ordered a division of the benefits that did not take into account the authorized deductions required by the USFSPA. As a result, Johnson did not stand for any mathematical calculation, rather the ruling was merely that the state must apply the federal requirements. In this case, the Court of Appeals determined that the trial court had not applied the federal requirements because the USFSPA does not authorize deductions for taxes prior to the division and has not for more than 20 years. As such, the parties’ decree intended for a division of the retired pay consistent with the USFSPA which does not allow deductions for taxes prior to the division. The Court of Appeals also noted that the division of husband’s gross retired pay was consistent with the division of wife’s gross retired pay and the courts must strive to treat parties equitably in divorce.
Finally, the Court of Appeals discussed the broad application of Utah Code section 30-3- 3(2) in awarding attorney fees. A trial court has “wide discretion” in awarding fees to the party who substantially prevailed. The Court of Appeals then instructed the trial court to consider awarding fees to wife below and on appeal because the interpretation of a decree is properly characterized as an action to enforce the decree.
Woodward v. LaFranca, 2016 UT App 141.
The Court of Appeals affirmed the trial court’s amended findings and denial of father’s petition to modify after having remanded it previously. In 2013 the Court of Appeals remanded to the trial court its determination to deny father’s petition to modify custody after the trial court disregarded the testimony of the custody evaluator, the child’s therapist, and the court appointed special master. The Court of Appeals previously determined that the trial court exceeded its discretion when entirely rejecting the testimony of the custody evaluator. Further, the Court of Appeals had previously determined that although the trial court was within its discretion in rejecting the special master’s testimony, it erred in failing to evaluate those concerns raised by the special master in the context of the best interests of the child. Additionally, the Court of Appeals determined the trial court had erred when considering the best interests of the child and outlined those specific errors in its remand. On remand, the trial court supplemented the original custody order with forty pages of new material but reached the same conclusion which was it was in the best interests of the child to be with mother.
A remand with specific instructions precludes the trial court from considering issues outside the scope of the remand and also precludes the appellate court from reconsidering the trial court’s original decision except as to the resolution of the issues previously identified. The Court of Appeals discusses the law of the case doctrine which sets forth that decisions made at one stage of the litigation are binding in successive stages of the litigation. As such, when reviewing the trial court’s determination on remand, the appellate court is limited to making a determination as to whether the trial court adequately implemented the mandates as set forth in the previous opinion. When the appellate court makes a pronouncement on a legal issue, the lower tribunal may not depart from that mandate and it must implement both the letter and the spirit of the mandate and may not reopen the case or consider other issues not included in the mandate. When reviewing whether the district court complied with the mandate, the appellate court reviews for correctness, but even if a trial court failed to comply with the mandate, the appellate court will affirm when it is clear that despite that deviation, a contrary determination would not change the trial court’s ultimate decision.
The Court of Appeals analyzed whether the trial court complied with the mandate on remand. The Court of Appeals reviewed the trial court’s amended findings regarding the specific issues raised previously on remand and found that the trial court substantially complied with its instructions but in the areas that it did not comply, the Court of Appeals found that a contrary determination would not change the trial court’s ultimate decision. The Court of Appeals affirmed.
Taft v. Taft, 2016 UT App 135.
In this complicated divorce, the Court of Appeals affirmed in part and remanded in part to the trial court to make more specific findings regarding expenses for alimony, recalculation of the terms of the property settlement, for support of not entering judgment for past due support, and for a consideration of attorney fees.
Husband and wife were married for twenty two years during which they acquired property including land and businesses. The parties were divorced by a bifurcated decree that reserved the issues of support and property for later determination. The court also entered a temporary order for the payment of support but stated that the terms of the temporary order were subject to retroactive modification. During the period of the temporary order, husband filed a request to modify that order because of losses in his business due to a faulty credit card reader which caused high losses at his gas station. Because of those losses, husband also sold a lot that he had purchased from his father that he claimed was secured by a note to his father. At trial, the trial court determined alimony, that a property settlement would be paid to wife by husband at a monthly payment of his choosing subject to a 2 percent interest, that the lot was not fraudulently transferred, that husband did not owe money pursuant to the terms of the temporary order, and that wife would not be awarded attorney fees.
When determining alimony, a trial court must make specific and detailed findings on each of the factors. Wife claimed that the trial court erred in determining husband’s income, but the Court of Appeals disagreed. The trial court determined husband’s income by using the gross income of his businesses less the necessary business expenses as directed by Utah Code section 78B-12-203. Therefore, husband’s income was supported. Wife failed to overcome the trial court’s factual findings by marshaling the evidence to demonstrate that they were clearly erroneous. The Court of Appeals determined, however, that although the trial court’s determination of the income of the parties was supported, the trial court’s award of alimony was not. Specifically, it appeared that the trial court tried to equalize income but failed to make findings on the traditional alimony analysis as to the expenses of the parties. Reiterating that equalization of income is only available when there is not enough money to go around after engaging in the traditional alimony analysis, the Court of Appeals remanded on that issue.
The trial court determined the value of the marital estate and awarded it all to husband subject to a payment to wife of one-half the total value. The trial court allowed husband to pay equal monthly installments of his choosing for ten years at interest of 2.13 percent. Wife challenged both the amount of the property settlement and the terms of the payment. Wife’s challenge to the value of the marital estate failed because she failed to marshal the evidence to demonstrate that the trial court’s conclusion was not supported. Wife cannot carry her burden by merely listing or rehashing her arguments at trial. Regarding an argument about valuing one business apart from the other business, the Court of Appeals held she had failed to preserve that issue. “A party may not claim to have preserved an issue for appeal by merely mentioning it.” But, wife did carry her burden to show that the trial court was not clear about valuing the business inventory and remanded. The Court of Appeals was clear in pointing out that it is not a requirement that trial courts must make separate findings regarding all different aspects of property and it can view property in its entirety and equitably divide the property to achieve a clean break, but it must have sufficient findings to show that division. Regarding the payment terms, the Court of Appeals reversed. Wife argued that the interest rate should not be 2.13 percent but should be 10 percent, and it was inequitable that husband had present use of his share of the marital estate but she did not. The Court of Appeals agreed about the inequity but did not determine that wife was entitled to the interest rate she claimed by pointing out that wife could not point to any law to support that claim but did determine that the interest rate awarded by the trial court did not provide incentive for husband to pay earlier than the full 10 year term. Further, the Court of Appeals noted that the terms of the decree could have allowed husband to pay $1.00 per month for 9 years and 11 months then pay a balloon payment while simultaneously investing that money for the same time period and reaping a large return. Finally, the Court of Appeals noted that it is important that property awards allow each party to go forward with his or her separate life and this award did not accomplish that goal.
The Court of Appeals affirmed the trial court’s determination that the transfer of the lot was not a fraudulent conveyance, but remanded to the trial court to reconsider the conclusion that the lot was not marital property. The Court of Appeals noted that the trial court could have determined that the debt and the value offset but the findings did not support that the trial court made that conclusion.
The Court of Appeals also remanded to the trial court to reconsider the conclusion that no retroactive support should be awarded based upon the terms of the temporary order. And finally, the Court of Appeals remanded the question of attorney fees award to wife and asked the trial court to engage in the analysis required by the case law and statute.
Ford v. Ford, 2016 UT App 127.
Husband appealed the trial court’s sanction of striking his pleadings and considering his unanswered requests for admissions as being admitted. Husband filed a motion to modify child support, property distribution, and visitation claiming his income had been reduced. Wife filed an Order to Show Cause alleging husband failed to pay child support as required. Prior to the hearing scheduled on the motion and the OSC, husband served discovery on wife who answered. Wife served discovery, including requests for admissions on husband. Both parties’ discovery was well outside the Rule 26 time frame for completion of discovery. Husband ignored wife’s discovery so wife filed a motion for Rule 37 sanctions including striking his pleadings. At the hearing with the district court, the court dealt with the motion to strike first and inquired with husband about his failure to respond. Husband claimed that discovery was closed so he was not obligated to respond. The trial court determined that it was unreasonable that wife was denied discovery and offered husband that if he would agree to pay wife’s attorney fees the court would continue the hearing and husband would respond to discovery. Husband declined the court’s offer. The trial court then struck his pleadings, including his motion to modify, and deemed the unanswered requests for admissions as admitted and proceeded on the OSC. Husband appealed.
The Court of Appeals began it analysis by reiterating that a trial court has broad discretion in determining discovery sanctions and will only be reversed if the trial court abuses that discretion. Rule 36 of the Utah Rules of Civil Procedure sets forth that requests for admissions will be deemed admitted unless the responding party responds in writing within 28 days. Any objection not stated in writing within that time frame is waived. Rule 36 says “is” admitted not “may” be admitted. Failure to respond in writing within 28 days is done at the party’s peril. Husband choose to not respond in writing, or at all, and did not file any motion to have the admitted facts withdrawn. The trial court, therefore, had no discretion to rule in any other way than the facts were admitted.
Husband next argued that the sanction was unduly harsh. The Court of Appeals noted though, that husband had served untimely discovery to which wife responded. When husband failed to timely respond to wife’s discovery, she offered him additional time. Wife informed husband that if he failed to respond she would file a motion to strike. He didn’t respond and she filed the motion. The trial court offered husband an opportunity to cure the problem by continuing the hearing but husband declined. Rule 37 allows the trial court to impose sanctions including striking pleadings. Husband knew the risk but forged ahead and the trial court was statutorily authorized to impose the sanction it chose. Further, the Court of Appeals noted that even if the sanction were harsh, harshness alone is not an abuse of discretion. Trial court affirmed.
Fish v. Fish, 2016 UT App 125.
The Court of Appeals affirmed the trial court’s denial of husband’s petition to modify alimony based upon wife’s increase in her monthly income. Husband and wife divorced and wife was awarded $800.00 per month in alimony based upon her unmet needs at the time of trial. Subsequently, husband petitioned to modify to reduce or eliminate alimony based upon wife’s increase in her monthly income. At trial, the court found that wife’s income had increased by $264.00 per month but her expenses had also increased by $492.00 so the trial court determined that husband had failed to establish a material change in circumstances and thus denied his petition to modify and required husband to pay wife’s attorney fees.
On appeal, husband argued that by finding that wife’s monthly expenses had increased the trial court modified the decree based upon expenses that did not exist at the time of the decree. Further, that the trial court failed to find that wife was voluntarily underemployed and failed to impute income to her and failed to find that the increase in her monthly income was an unforeseen material substantial change in circumstances that warranted a modification of the decree.
The Court of Appeals articulated that a trial court may not modify an alimony award to include expenses that did not exist at the time the decree was entered citing Utah Code section 30-3-5(8). However, the Court noted, the trial court did not modify the decree, instead it denied the petition to modify finding that although wife’s income had increased her expenses had also increased and as such she still had a similar amount of unmet needs. The Court of Appeals set forth in a footnote that Utah Code section 30-3-5(8) prevents a court from modifying an award it does not forbid the court from considering those needs when deciding to not modify a decree. Husband claimed, however, that the trial court in fact did modify the decree because the order was titled “Modification of Decree of Divorce.” The Court of Appeals noted that although that certainly was the title of the Order, it was not the substance of the Order which stated that the Petition to Modify was denied and alimony would remain at $800.00. When reviewing an order, it is the substance rather than its caption that governs its interpretation.
Husband’s argument regarding voluntary underemployment and imputation of income was a two part argument. First that the “law of the case” required the court to find that wife could work 36 hours per week and second that the trial court was required to impute to wife income consistent with 36 hours per week. The Court of Appeals analyzed the “law of the case” doctrine and determined that it was not clear that the trial court’s determination of the number of hours wife could work in 2009 was relevant to the number of hours wife could work in 2014 but regardless, the “law of the case” doctrine only applies after an appeal and remand. Because the 2011 order was not appealed the doctrine just does not apply. The imputation of income argument was likewise rejected. The Court of Appeals reiterated that a “finding of voluntary underemployment does not require a court to impute the higher income; it merely allows [the court] to do so.”Connell v. Connell, 2010 UT App 139, ¶17.
Husband argued that wife’s increase in her monthly income must be a material change in circumstances because the decree did not contemplate any increase in income because it was devoid of any language discussing an increase in income. The Court of Appeals noted (finally, really?) that the statute specifically states that it is whether the alleged change of circumstances was “foreseeable” not whether the alleged change in circumstances as actually foreseen and accounted for in the divorce decree. Utah Code § 30-3-5(8)(i)(i). There is no authority to support the claim that a court must find a change in circumstances simply because one party’s income has increased and the decree made no mention of that possibility. Thus the trial court was within its broad discretion to determine that an increase in monthly income by the recipient spouse was foreseeable and as such there was no material change in circumstances that would warrant a modification of the decree.
*Finally, wife was awarded fees by the trial court but failed to ask for fees on appeal. So she didn’t get fees on appeal. She could have just stated in her brief something like “wife was awarded fees below so she wants fees on appeal” and she would have had fees on appeal. That appears to have been an expensive sentence to leave out.*
Veysey v. Nelson, 2017 UT App 77.
The Court of Appeals affirmed the trial court’s determination that mother’s claim for daycare expenses incurred by her more than a decade prior. Previously, the trial court determined that laches and the statute of limitations had barred her claim, but that determination was vacated and remanded by the Court of Appeals in a prior appeal with a determination that child care expenses as part of a child support order are considered child support for statute of limitations purposes. The Court of Appeals noted, however, that with adequate findings, the doctrine of laches could equitably preclude the recovery of day care expenses that were legally recoverable under the statute of limitations.
On remand, the trial court held that the doctrine of laches barred most of mother’s reimbursement claims. The trial court determined that mother was unreasonable in her delay of providing documentation seeking reimbursement and that her delay caused father prejudice. Mother filed a motion to alter the results claiming that Utah law prohibits the application of laches when an action is timely brought under the applicable statute of limitations. The trial court denied the motion and mother appealed.
Mother argued that the district court erred in applying the doctrine of laches and determining that she unreasonably delayed and that her delay caused prejudice. Mother first argued that Utah law precludes laches as a defense to a claim that is brought within the applicable statute of limitations. For support, mother cited a Utah Supreme Court case that stated that when a claim is brought in law the statute of limitations applies not the doctrine of laches. But, the Court of Appeals noted that Utah has abolished any formal distinction between law and equity which makes a blanket rule inapplicable. And subsequently, the Utah Supreme Court specifically held that the doctrine of laches may apply whether or not an applicable statute of limitations has been satisfied. As such, because laches may apply even when a statute of limitations has not run, the existence of a statute of limitations does not automatically preclude the application of the doctrine of laches.
Mother next contended that her delay was not unreasonable and that any delay did not cause father any prejudice. To prevail on an argument to apply laches, the defendant must establish both that the plaintiff unreasonably delayed and that delay caused the defendant prejudice. Mother claimed that because she asserted her claim within the statute of limitations her delay was reasonable per se. But the Court of Appeals noted that they “have largely dispelled this notion.” The Court of Appeals recognized that the trial court found that mother waited more than a decade to provide documentation yet the statute dealing with child care expenses required mother to notify father within 30 days of the change in expenses, which she did not. And, although father knew of the change in child care providers, there was nothing the record to demonstrate that he had any knowledge as to the change in the cost of the provider. Mother had no justifiable explanation for her delay and the trial court supported its conclusions with adequate findings and as such, the trial court did not err determining that mother’s delay was unreasonable. Mother contended that her delay did not prejudice father because it did not cause any difficulty in demonstrating the amount owed. But the trial court made several findings to the contrary, such as that mother could not adequately support the amounts claimed, such as her ledger that showed credit card payments to the child care provider which was also the child’s private school which did not differentiate between tuition and after school care or enrichment programs. Further, the trial court found that father was prejudiced in not being timely informed of the change in the financial obligations because it prevented him from having an opportunity to object or collaborate with mother to find less expensive child care. The trial court adequately supported its conclusions with findings and as such, did not err in determining prejudice to father.
Judge Voros concurred in the result but on alternative grounds which were that the child care statute 78B-12-214 provides that a parent who incurs child care expenses shall notify the other parent of any change in the provider or the expense within 30 days of the change and a parent who fails to comply with the requirement “may be denied the right …to recover the other parent’s share of the expenses.” The trial court found that there was no evidence that the change in the monthly amount ever communicated to father which would then implicate the court’s discretion to deny recovery of those expenses consistent with the provisions of the statute. Judge Voros notes that affirming on those grounds sidesteps the analysis as to whether the trial court correctly applied the doctrine of laches in equity.
Oldroyd v. Oldroyd, 2017 UT App 45. The Court of Appeals vacated the trial court’s determination regarding a division of a
premarital home and remanded to the trial court for more complete findings.
Prior to the parties’ marriage, wife owned vacant land upon which she began building a home. Just after the parties began dating, husband quit his job and assisted in the building of the home by providing labor and supervising construction. Wife paid for all the costs and paid husband an amount of money, ostensibly, for his labor. The land and the home were always titled in wife’s name and husband made no financial contribution. The parties married soon after the construction of the home was completed. The trial court determined that prior to the parties’ marriage, “both parties acquired a separate premarital interest in the improvements of the property.” The trial court determined that the payments made by wife to husband for labor was not tied to the value of the services rendered must have been a gift to husband so husband’s labor entitled him to an interest. (The court of appeal noted that the trial court did not discuss whether husband’s labor was then a gift to wife.) The trial court ordered the home to be sold, wife to receive value for the land and the remainder to be shared equally.
Wife appealed. The Court of Appeals noted that in a divorce, each party is presumed to be entitled to all of his or her separate property and fifty percent of the marital property. The trial court must categorize property as separate or marital. In this case, the trial court determined that wife’s land was separate property but each party had acquired a separate premarital interest in the home. But, the Court of Appeals noticed, the trial court specifically found that title to the home had always been with wife and as such, husband could have only acquired an equitable interest. The trial court failed to explain which legal theory gave rise to an equitable interest. As such, it must be remanded for such findings. Husband argued that the trial court found exceptional circumstances to award him an interest, but the trial could had not determined that the home was marital property subject to an unequal division, nor did the trial court determine there were exceptional circumstances. Rather, the trial court specifically determined that each party had a separate premarital interest in the home but failed to explain why. The Court of Appeals rejected husband’s argument that the interest was based upon agreement of the parties because the trial court specifically found that no such agreement existed.
Nevares v. Adoptive Couple, 2016 UT 39.
The Supreme Court determined that Utah did not have jurisdiction to hear a paternity action based upon the Uniform Child Custody Jurisdiction and Enforcement Act and affirmed the trial court’s dismissal for lack of subject matter jurisdiction.
Nevaras brought a paternity action in Utah to establish paternity and obtain custody of a child he fathered but who was placed for adoption by mother. Previously the Supreme Court determined that Nevaras could proceed with his paternity action which had been dismissed by the district court on the basis that Utah law would not have held him liable for a sexual offense and as such, dismissal was improper. After remand, Adoptive Couple intervened and moved to dismiss Nevaras’ action based upon the UCCJEA because Utah did not have jurisdiction to adjudicate paternity because the child was not present in the state at the time of the proceeding. The trial court agreed and dismissed the case for lack of subject matter jurisdiction.
The Supreme Court analyzed the UCCJEA and the steps that must be taken to establish subject matter jurisdiction. Because an initial child custody determination was never made, it was appropriate for the trial court to determine whether Utah had jurisdiction to make such a determination. It did not. Utah was not the home state of the child at the time of the commencement of the action because the child was not present in Utah having only been in Utah for 8 days after his birth. The Supreme Court also analyzed the UCCJEA provisions regarding other bases for jurisdiction and determined that no other basis sufficed. Because Utah lacked subject matter jurisdiction the trial court correctly dismissed Nevaras’ paternity action.
Andersen v. Andersen, 2016 UT App 182.
The Court of Appeals affirmed the trial court in awarded wife unreimbursed child care costs, imputing husband income of $5,500.00 per month for child support purposes, and awarding wife one-half of the settlement proceeds from a civil lawsuit. The trial court held a two-day trial and issued a 59-page memorandum decision in which the trial court found “great difficulty in attributing full candor to husband on financial matters” and found no credible evidence to determine husband’s actual income so imputed income to him of $5,500.00 per month. The trial court determined that husband owed wife for child care expenses incurred by her and deducted from her paycheck despite the fact that there were no separate invoices from the day care provider. Finally, the trial court determined that the settlement proceeds from a civil lawsuit were marital and divided them equally.
Husband appealed and argued that the trial court erred in awarding child care expense that were not separately documented by the child care provider, erred in imputing income to him, and erred by awarding wife one-half of the settlement proceeds because they were for a personal injury.
The Court of Appeals first considered wife’s claim on appeal that husband failed to comply with Rule 11 of the Utah Rules of Appellate Procedure and asked for the trial court’s findings to be summarily affirmed. Rule 11 requires that a party who is claiming error below must support the allegations with an adequate record. Here, husband only provided a partial transcript “because he was unable to afford a complete transcript” which only covered the second half of the second day of trial. The Court of Appeals did not summarily affirm, but in its analysis it determined that husband’s challenges to the sufficiency of the evidence would fail because of his failure to provide a record which would allow the appellate court the ability to conduct a review.
Husband’s first two claims, the child care expenses and the imputation of income were rejected because husband failed to provide the transcript. The trial court found wife’s testimony regarding the child care expenses to be credible. Specifically, wife testified that the child care was provided by Salt Lake County where she was employed and although the amounts varied, they were deducted from her paycheck. She provided a summary of the deductions. The Court of Appeals rejected husband’s argument that the absence of separate documents from the provider precluded the trial court from awarding those costs and found instead that the trial court relied on wife’s testimony which because there was no transcript, could not be reviewed on appeal. The trial court also found that husband was not credible and there were great discrepancies in the documents and testimony. Again, because husband failed to provide a transcript, the Court of Appeals was unable to review and applied the maxim that if the record is incomplete they must presume the judgment was supported by admissible and competent evidence. As such, the imputation was affirmed.
Husband’s third claim, the settlement proceeds, was likewise rejected. A trial court must first determine whether assets are marital or separate prior to making an award. Marital property will be divided equally but separate property will be awarded to the acquiring spouse. Compensation for personal injury can be either separate or marital depending on the nature of the damages. Compensation for personal debilitation, pain and suffering, and disability are generally the separate property of the injured spouse. But, compensation for lost wages and medical expenses are generally considered marital property. The court then must examine the personal injuries to determine whether the proceeds are separate or marital. Here, husband’s claims were for lost income, attorney fees, civil penalties, and punitive damages, which claims were settled in the settlement agreement. The Court of Appeals determined that these claims for injuries were not the type of personal injury that would make the proceeds the separate property of the injured spouse. The Court of Appeals affirmed the trial court’s award dividing those equally.
Finally, the Court of Appeal rejected husband’s request for attorney fees on appeal and instead awarded wife her fees on appeal because she had been awarded fees in the trial court.
(Note: Hats off to Bart Johnson for putting these summaries together and presenting them at the yearly Utah family law CLE.)
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