In re D.D., 2016, UT App 148, A.K.A., You Gotta Ask

I try to read every Utah Court of Appeals case that has anything to do with divorce and family law. It can be a daunting task, because there are quite a lot of them. Still, they can be invaluable in practice as you happen upon many of the same situations that you read about in these cases.

In perhaps my favorite recent Court of Appeals case (both because of the absurdity of the argument, and because the decision is all of two pages), you have a father, J.D. J.D.’s child, D.D., was in the juvenile court system because it was alleged D.D. had been abused and neglected. The court held a trial to determine if D.D. was, in fact, abused and neglected.

J.D. decided to show up late to the trial. In fact, he showed up while the judge was making her ruling, after all evidence had been provided, and after his attorney had cross-examined the State’s witnesses. J.D.’s attorney wanted it on the record his client did appear, but did not ask that his client be allowed to testify.

Unsurprisingly, the judge continued with her ruling, and found D.D. had been abused and neglected.

J.D. appealed, arguing the judge should have allowed him to testify before making its ruling. (I think you can see where this is going.)

The Court of Appeals summarily dispatched J.D.’s argument, stating that if he wanted to testify, he should have, well, asked to testify. Essentially, the Court of Appeals said it was logically impossible for the juvenile court to have erred in not allowing J.D. to testify if the he didn’t actually ask to testify.

This case teaches a great lesson: you have to ask for what you want at trial. If you don’t ask, you’ll never get it, and you’ll be precluded from asking for it on appeal. It’s that simple. Same with objections. If you don’t object during trial, you can’t object for the first time on appeal.

So, remember: you gotta ask.

Published On: July 16th, 2016Categories: CourtComments Off on In re D.D., 2016, UT App 148, A.K.A., You Gotta Ask
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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