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Category: Adultery

2024 UT App 43 – domestic violence appeal

State v. Arce – 2024 UT App 43

THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee, v. JOSE FELIPE ARCE, Appellant.

Opinion No. 20220006-CA Filed March 28, 2024

First District Court, Logan Department The Honorable Brandon J. MaynardNo. 191100762

Freyja Johnson, Emily Adams, and Hannah Leavitt-Howell, Attorneys for Appellant, assisted by law student Ryder Seamons[1]

Sean D. Reyes and Marian Decker, Attorneys for Appellee, assisted by law student Rebecca Barker

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        A domestic dispute ensued on an emotional evening after Jose Felipe Arce had returned home from attending the birth of a child he believed he fathered as a result of an affair. Arce does not dispute that an argument occurred. He denies, however, that he hit or choked his spouse (Wife). This appeal centers on Wife’s statements near the time of the event and her complete recantation at trial. Arce claims numerous errors, including that the trial court should not have allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury, a deputy should not have been allowed to vouch for a particular version of Wife’s testimony, the State and a witness should not have used the word “victim” 29 times, and these errors cumulatively prejudiced him. Although we do not endorse the approach taken by the trial court or the parties, we affirm the convictions.

BACKGROUND

¶2           The State charged Arce with, and the jury convicted him on, one count of aggravated assault (domestic violence) and five counts of domestic violence in the presence of a child. At the center of this appeal are the different versions of events as related by Wife. We recite the facts in a light most favorable to the jury’s verdict. See State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

Alleged Assault and Wife’s Statements in the Subsequent Hours and

Days

¶3           In July 2019, Arce visited the hospital for the birth of a child whom both Arce and Wife believed he may have fathered with another woman. Wife described the day as an emotional one filled with tears. When Arce returned from the hospital, the couple decided to take their kids swimming at a hot springs resort. The couple talked about the difficult situation on the drive there, with more crying from Wife. On the drive home, their conversation escalated into an argument while the children slept in the back seat. After Arce asked for forgiveness, Wife said she had forgiven him for “many things” but “this was just too much.” Arce pulled the car over, and Wife said that the two “couldn’t be together anymore.” Wife later told police and neighbors that after pulling over, Arce hit and choked her.

¶4          Arce then drove the family home, and he told the children to go inside. Wife later told police and neighbors that, as they continued arguing, Arce hit her, threw her to the ground, kicked her, pulled her hair, tried to choke her, and threatened to hit her with a beer bottle.

¶5          At this point, Wife ran to her neighbor’s (Neighbor) home. Neighbor could hear Arce yelling as she opened the door to find Wife out of breath, shaking, and crying. Wife was in a t-shirt with no pants. Neighbor and her husband (Neighbor’s Husband) believed Wife was seeking safety. Wife told them Arce was trying to hurt her. She also told the couple she wanted Arce out of the house. She then recounted the earlier fight that had happened during the drive home, including that after arriving home Arce had hit and kicked her and tried to choke her. Neighbor did not see any injuries on Wife. Neighbor’s Husband said that he saw “a red mark kind of on her collarbone on her left side.”

¶6          Neighbor’s Husband, a deputy sheriff, called police, who arrived fewer than ten minutes later. The responding officer (Deputy) interviewed Wife at Neighbor’s home that evening. Deputy testified that Wife appeared “extremely distraught,” “frantic,” and “emotionally distressed” and that she continuously wiped her eyes and nose from crying. During the interview, Wife told Deputy that Arce both struck and choked her. She also recounted that after returning home, Arce dragged her out of the car by her hair, threatened to hit her with a beer bottle, choked her, and slapped her. Deputy observed that the area under Wife’s right eye was “somewhat swollen” and that she had “some sort of reddish mark” on her collarbone that looked like it was beginning to bruise.

¶7          By that time, Arce had left the scene. Wife signed a request for a no-contact order and, with her children, went to emergency housing that the Deputy arranged. Wife also completed a lethality assessment. In the assessment, Wife indicated that she thought Arce might try to kill her. In an additional comment section, Wife noted that “having [Arce] at the home was a concern of safety for her.”

¶8          The following day, a police officer (Detective) interviewed Wife at her work. Wife again recounted the events, including Arce choking her, slapping her, grabbing her hair, throwing her to the ground, and threatening to hit her with a bottle. Wife also filled out a written statement during the interview with Detective recounting these same allegations. The top of the statement gave the following warning, “You are notified that the statements you are about to make may be presented to a magistrate or a judge in lieu of your sworn testimony at a preliminary examination. Any false statements you make and that you do not believe to be true may subject you to criminal punishment as a Class A Misdemeanor.” Wife signed the statement.

¶9          That same night, Deputy interviewed Arce by phone. Arce explained that he and Wife had taken the children to the resort “to have a good day” but Wife kept bringing up the infidelity and birth of the baby, so the two argued. Arce said that during the argument, he went through Wife’s phone, saw messages from another man, and asked, “[W]ho the f*** is this person?” When asked if he hit or choked Wife, Arce responded that he did not recall. Arce did, however, say that there was a miscommunication between them and that there was “some pushing and shoving.”

Wife’s Recantation and Testimony at Trial

¶10 The same day that Detective interviewed Wife, Deputy listened to a voicemail from Wife asking that all charges be dropped. When Wife later spoke with Deputy on the phone, she again asked that the charges be dropped. Wife explained that Arce “had a good job and that she needed help with the five children.”

¶11 At trial, Wife testified consistently with the prior statements she had made to law enforcement and her neighbors, however, she insisted that she made up the allegations of domestic violence against Arce. From the stand, Wife said, “This is why I wanted to just come up here because I hear all the charges and it’s really very selfish of me, you know. So this is why I’m sitting up here and I’m saying what really happened.” Wife testified that all the events occurred as she explained to law enforcement and the neighbors but that Arce never hit or choked her. Wife testified that after telling Arce they could not be together anymore, she told him to take her home, and he did. Wife testified that she opened the car door and sat on the edge of her seat while they continued arguing and yelling at one another but no physical altercation occurred.

¶12 When the State began asking her questions about police arriving the night of the incident and what she told them, the court stopped the questioning and excused the jury. The court explained to Wife that she had a right not to incriminate herself and that doing so would open her up to prosecution. The State asserted several times, “We won’t charge her.” The State also served Wife with a written notice of use immunity for purposes of the trial.[2] And the court provided her with the opportunity to speak with an attorney. Subsequently, Wife was appointed counsel.

¶13 Following a recess, the State asked that Wife be declared a hostile witness, allowing it to ask her leading questions, which the court granted. After speaking with his client, Wife’s counsel advised the court that Wife would be exercising her Fifth Amendment right moving forward. The State argued that the immunity it had offered Wife would protect her and that it was not the State’s intent “to ask the Court to hold [Wife] in this case in contempt” for refusing to testify. Wife’s counsel argued that the notice of use immunity was inadequate to protect her because it expressly did not grant immunity against a future perjury prosecution. The State again asked the court to treat Wife as a hostile witness. Arce’s counsel objected, arguing that the State knew weeks in advance that Wife might invoke her Fifth Amendment right. The State argued that knowing what Wife would do for weeks in advance was “a little bit of a stretch” and that its grant of use immunity was sufficient.

¶14        During further argument over whether to allow the State to treat Wife as a hostile witness, the State again said it would not seek to have the court hold her in contempt. The court ultimately granted the State’s request and received affirmation again from the State that it would not ask the court to hold Wife in contempt if she refused to testify.

¶15        The next day, the State retracted its written immunity offer and explained that it planned to ask Wife questions to which she could “choose to invoke the Fifth or to respond.” Wife’s counsel objected, arguing, “[T]he State’s going to try to . . . present their case by asking those questions and hearing the Fifth . . . . [T]hat’s just them trying to testify to the jury by the questions they’re asking.” The court disagreed, explaining that anything the State said was not evidence and that Wife could not make a “blanket” invocation of her Fifth Amendment right.

¶16 When Wife took the stand again, she invoked the Fifth Amendment 47 times in response to the State’s questions.[3] The State’s questions included asking Wife about the same things she had addressed the day before, prior to invoking her constitutional right to silence. Arce’s counsel did not object to or seek to limit the State’s leading questions or Wife’s invocations; neither did he request a mistrial.

Other Testimony at Trial

¶17 During the trial, the State called Neighbor, Neighbor’s Husband, Deputy, and Detective to the stand; each recounted the events and gave consistent testimony of the statements Wife made to them concerning the events during the evening in question— including the physical abuse she allegedly experienced at the hands of Arce.

¶18 During Deputy’s examination, the State asked, “And so ultimately what did your investigation lead you to believe happened that night?” Defense counsel made no objection. Deputy responded, “Based off all my observations and interview, I believe that the victim had been struck and choked and that there was a domestic violence assault that occurred.” The State then asked, “And I just want to emphasize, why is it that you believed that this truly happened?” Defense counsel again made no objection. Deputy answered,

I believe it truly happened given a number of things. Mainly, when I spoke to [Wife], she appeared to be honest and genuine in the emotion that she was describing things with was clearly emotional distress, upset that I’ve seen. And not every case is the same. I’ve seen other people who have been victims of assault act similar, so that’s why I believed it. She appeared to be honest and genuine.

¶19 During Detective’s testimony, the State moved to admit into evidence Wife’s written statement that was given under penalty of perjury, which the court allowed.

¶20 The State also called two expert witnesses. A clinical psychologist testified about patterns of domestic violence and that individuals experiencing abuse frequently stay in the relationship and/or recant their previous stories. And a pediatric nurse practitioner testified about strangulation, including that in over 50% of strangulation cases there are no visible injuries.

¶21 Throughout the trial, the State, Deputy, and Detective referred to Wife as “the victim” 29 times. And the State and its witnesses—primarily the clinical psychologist—used the term “victim” or “victims” generally an additional 45 times. The State also referred to Wife as the “alleged victim,” primarily during jury selection but also sporadically throughout the trial.

Closing Arguments and Verdict

¶22        In closing arguments, the State argued that the jury should believe Wife’s original statements to her neighbors and police as those were made instinctually to keep her family safe from a threat rather than out of “selfish[ness] or insincer[ity].” The defense argued that Wife had every reason to hate Arce but she wanted to set the record straight about her lies concerning the events of that night and that the State’s case fell apart without her lies.

¶23        During deliberation, the jury asked for access to the State’s “questions on day 2 to [Wife] when she pled the fifth.” The court did not grant the request.

¶24        The jury convicted Arce on all charges. Arce now appeals.

ISSUES AND STANDARDS OF REVIEW

¶25 Arce raises three issues on appeal. First, Arce argues that the trial court incorrectly allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury. We give trial courts “broad discretion to admit or exclude evidence, including lay witness testimony, and will disturb [a trial court’s] ruling only for abuse of discretion.” State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d 624 (cleaned up). But the trial court must correctly interpret and apply the law. Id. ¶ 30. We review “the legal questions underlying the admissibility of evidence” for correctness. Dierl v. Birkin, 2023 UT App 6, ¶ 15, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023).

¶26 Second, Arce argues that he received constitutionally ineffective assistance of counsel when his counsel (1) did not seek to limit or remediate the continued questioning of Wife by objecting, moving to strike both the questions and invocations, or asking for a curative instruction; (2) failed to object to Deputy improperly opining on and vouching for the credibility of Wife’s report the night of the incident; and (3) failed to object to the State and witnesses referring to Wife as “the victim” 29 times during the trial. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).

¶27 Finally, Arce argues that under the cumulative error doctrine, the evidentiary error and ineffective assistance of counsel Arce received should undermine our confidence in the outcome of the trial. “We will reverse a jury verdict or sentence only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.” State v. Lopez, 2019 UT App 11, ¶ 22, 438 P.3d 950 (cleaned up).

ANALYSIS

  1. Evidentiary Ruling

¶28 Arce argues that the trial court improperly overruled Wife’s counsel’s objection to the State questioning Wife despite knowing that she would invoke her Fifth Amendment right. Here, the trial court did not expressly say why it allowed the State, knowing Wife would invoke her constitutional privilege, to continually examine Wife. After Wife met with counsel and determined that she would invoke her Fifth Amendment right moving forward, the State asked the court to declare Wife a hostile witness and allow the State to continue examining her with leading questions. Wife’s counsel objected to declaring her hostile, arguing that the State already knew she would invoke her right for each question, which would allow the State, in Wife’s counsel’s words, to “present their case by asking those questions and hearing the Fifth” and to offer testimony “to the jury by the questions they’re asking.” The court responded that “anything [the State] says isn’t evidence, so it doesn’t matter.” And Wife’s counsel responded that the court should not allow it precisely because the State’s questions would not be evidence. The court disagreed and determined that the State could ask questions and that Wife could invoke her right to every question if she wanted to but she had to testify “if it [had] nothing to do [with a topic] that would incriminate her.” The court further determined that Wife’s invocation of her Fifth Amendment right could not be invoked in a blanket fashion and that she would have to invoke it for each question, as there may be some she could answer.

¶29 The State argues that regardless of the court’s reasoning, the court did not err because Wife waived her privilege by testifying earlier and recanting her story.[4] We note that the State did not make this argument during trial. Alternatively, the State argues that Wife never had the privilege to begin with because the State provided her with immunity.[5]

¶30 Notwithstanding each parties’ arguments, our review of the record indicates that Arce did not preserve this issue. It is “well within our prerogative to raise a preservation issue on our own initiative when it provides an alternative basis for affirmance, even if the State failed to brief the preservation argument.” State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983), our supreme court confronted “[w]hether an objection by one party properly preserves an objection on appeal as to another party.” Id. at 1164. The supreme court followed what “[v]irtually every other jurisdiction that has considered the question has concluded,” which is that “an objection . . . by one or more parties at trial does not inure to the benefit of other parties who do not join in the objection.” Id. at 1164–65. In State v. Calliham, 2002 UT 86, 55 P.3d 573, two brothers charged with murder were tried together. Id. ¶¶ 1–3. Following their convictions, one brother (Brother 1) appealed. Id. ¶¶ 18–19. As part of his appeal, Brother 1 argued that the trial court’s decision to admit specific evidence was an error that violated his constitutional rights. Id. ¶ 32. However, our supreme court held that this issue was not preserved for appeal, as it was the other brother (Brother 2) who had objected—an objection which Brother 1 did not join at trial. Id. ¶ 33. “[Brother 1] did not join in [Brother 2’s] objections on the record or make any objection of his own,” thus preventing him from claiming on appeal that it prejudiced him or undermined his constitutional rights. Id.

¶31 Similarly, in the case before us, Arce was not the one who objected to Wife taking the stand, knowing she would invoke her Fifth Amendment right for every question—it was Wife’s counsel who made the objection. Arce did not join that objection.[6]

Therefore, as in Calliham, Arce has not preserved the right to now claim on appeal that the court erred in its decision to allow Wife to testify, which in turn allowed the jury to hear her invocations 47 times.[7]

¶32        And the issue needed to be “preserved in order to give the trial court an opportunity to address the claimed error, and if appropriate, correct it.” Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (cleaned up). Here, the trial court had no such opportunity. It is readily evident from our review of the record that the trial court was not focused on the impact these Fifth Amendment issues would have on Arce. Instead, the trial court ruled on this issue through the lens of its impact on Wife. Had Arce objected, the trial court may have fully engaged in an analysis of whether Wife’s Fifth Amendment right was waived or abandoned as the State suggests. But Arce made no such objection, and therefore the court engaged in no such analysis.

¶33        “As a general rule, claims not raised before the trial court may not be raised on appeal,” and it is “well-established” that this “preservation requirement applies to every claim, including constitutional questions.” Conner v. Department of Com., 2019 UT App 91, ¶ 48, 443 P.3d 1250 (cleaned up). Despite Arce’s arguments that he preserved this issue, the record does not support his assertions, as “a party must raise [the issue] before the [trial] court specifically, in a timely manner, and with support by evidence and relevant legal authority, such that the issue has been presented to the trial court in such a way that the trial court has an opportunity to rule on it.” Id. (cleaned up). As discussed, the record does not reflect an objection from Arce on the issue but instead from Wife, which did not allow the court to review the issue as it pertains to Arce. Therefore, the issue is not properly preserved, and we do not consider the merits of his claim.

  1. Ineffective Assistance of Counsel

¶34        “To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong Strickland test: (1) counsel’s performance was objectively deficient and (2) the deficient performance resulted in prejudice.” State v. Fleming, 2019 UT App 181, ¶ 9, 454 P.3d 862 (citing Strickland v. Washington, 466 US 668, 687–88 (1984)), cert. denied, 462 P.3d 803 (Utah 2020). “[D]eficient performance is not determined in a vacuum; rather, it involves asking whether the strategy [counsel] employed was that of a reasonable, competent lawyer in the real-time context” of a trial. State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142, cert. denied, 485 P.3d 944 (Utah 2021). “However, even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he ultimate question is always whether, considering all the circumstances, counsel’s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. And a defendant establishes prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Gonzalez, 2021 UT App 135, ¶ 8, 501 P.3d 1205 (cleaned up). “That is, the defendant’s showing must undermine our confidence in the outcome.” Id. (cleaned up). The impact of such alleged errors must “be a demonstrable reality.” Id. (cleaned up).

¶35        “Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” Fleming, 2019 UT App 181, ¶ 9 (cleaned up). “And if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.” Gonzalez, 2021 UT App 135, ¶ 7 (cleaned up). Given the likelihood that similar events to those of this case can and will arise before the trial courts of this state, we address counsel’s alleged deficient performance, although we ultimately determine that Arce’s claims fail for lack of prejudice.

  1. Deficient Performance
  2. Invoking the Fifth Amendment

¶36 In addition to Arce’s arguments already discussed above regarding Wife’s invocation of her Fifth Amendment right, Arce argues that his counsel acted deficiently by not seeking to limit or remediate the State’s continued leading questions and Wife’s invocations by objecting, moving to strike both the questions and invocations, or asking for a curative instruction. Based on the reasoning in Mitchell v. United States, 526 U.S. 314 (1999), and In re Flint Water Cases, 53 F.4th 176 (6th Cir. 2022), competent counsel could reasonably choose not to take any of these actions, as Wife had waived her Fifth Amendment privilege by having voluntarily testified about the matter in question. A “witness . . . may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell, 526 U.S. at 321. “When the witness testifies, the privilege is waived for the matters to which the witness testifies.” In re Flint Water Cases, 53 F.4th at 193 (cleaned up). Thus, Arce’s counsel, and correspondingly the trial court, could have concluded that Wife did not have the right to invoke the privilege. Therefore, we determine that Arce fails to show deficient performance.[8]

¶37 Arce claims his counsel should have objected and pointed the court to rule 403 (excluding evidence which is substantially more prejudicial than probative), rule 510(c) (disallowing comment by a judge or counsel about, or a factfinder making an inference from, the invocation of a privilege), or rule 611(a) (allowing a court to control the examination of witnesses so as to avoid wasting time or the harassment or embarrassment of a witness) of the Utah Rules of Evidence. Arce makes no effort, however, to provide us with the context of Wife’s 47 invocations or the depth of her earlier testimony.[9] While Arce discusses Wife’s trial testimony prior to the court’s interruption to allow her to consult her counsel, he provides the court no comparison of that testimony with the subject matter of the questions asked on cross-examination when she began invoking the Fifth Amendment. As a result, the briefing leaves us with no understanding about whether all 47 invocations were directly addressing matters about which Wife had already testified—particularly her recantation. Assuming the questions were simply cross-examination of statements made earlier in trial, Arce’s counsel would have no basis for an objection because the privilege would be waived. Furthermore, without an understanding of the depth of Wife’s earlier testimony, we cannot gauge whether 47 invocations corresponded in an impermissible or potentially prejudicial way to Wife’s prior trial testimony. Within the confines of the briefing provided to us, we cannot fault Arce’s counsel for failing to object or make other efforts to limit the testimony.

¶38        Given that there is an obvious basis to believe that Wife no longer possessed a Fifth Amendment privilege and where the briefing does not delineate any context for the questions for which the privilege was invoked, Arce has not overcome the presumption that his counsel acted reasonably, and we cannot conclude that Arce’s counsel was objectively deficient in his representation. State v. Hart, 2020 UT App 25, ¶ 20, 460 P.3d 604 (stating that to prove deficient performance a defendant must overcome a “strong presumption that his trial counsel rendered adequate assistance” (cleaned up)), cert. denied, 462 P.3d 805 (Utah 2020). We acknowledge that there certainly could be circumstances where compelling a witness to invoke a privilege 47 times would be troubling, but we can reach no conclusion about counsel’s failure to object to these questions here.

  1. Witness Opining and Vouching

¶39        Arce further argues that his counsel performed deficiently by failing to object to Deputy opining on and vouching for the credibility of Wife’s statement the night of the incident. Rule 608(a) of the Utah Rules of Evidence “permits testimony concerning a witness’s general character or reputation for truthfulness or untruthfulness but prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984 (cleaned up); see also State v. Adams, 2000 UT 42, ¶ 19, 5 P.3d 642 (detective testifying “he did not believe [the victim] was coached” was inadmissible vouching); State v. Jones, 2020 UT App 161, ¶ 14, 478 P.3d 1055 (per curiam) (“[A]dmission of testimony that bolsters the credibility of another witness’s testimony on a particular occasion is improper.”); id. ¶ 18 (officer testifying regarding interview techniques for domestic violence victims did not violate rule 608 because he did not opine on the victim’s truthfulness on a particular occasion); State v. Lewis, 2020 UT App 132, ¶ 26, 475 P.3d 956 (police sergeant describing variations he sees in victims’ statements when multiple accounts are given was not bolstering, as “he did not directly opine on [the victim’s] credibility”); State v. Cegars, 2019 UT App 54, ¶¶ 23–24, 440 P.3d 924 (school counselor testifying that she did not believe the victim would fabricate allegations was inadmissible bolstering); State v. Vail, 2002 UT App 176, ¶¶ 15, 17, 51 P.3d 1285 (detective testifying that two victims of child sexual abuse “exhibited the indicators that she equated with trustworthiness” was inadmissible bolstering); State v. Stefaniak, 900 P.2d 1094, 1095 (Utah Ct. App. 1995) (social worker testifying that a victim of abuse “seemed to be quite candid” in an interview was inadmissible vouching (cleaned up)). For example, an officer cannot comment on whether a witness appeared “to be genuine” during an interview, as it is a direct comment on the witness’s truthfulness and clearly violates rule 608. State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452 (cleaned up). We emphasize again today that the State’s use of a law enforcement officer’s testimony for bolstering and vouching in this manner is inappropriate. We perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

¶40 But even so, Arce can prevail only if he establishes both deficient performance and prejudice. And for the reasons set forth in Part II.B, we conclude that he was not prejudiced by this deficient performance.

  1. Referring to Wife as “the Victim”

¶41        Finally, Arce argues that his counsel performed deficiently by failing to object to the State and witnesses referring to Wife as “the victim” 29 times in front of the jury. Our supreme court “recognize[s] the gravity of referring to witnesses as victims during a trial.” State v. Vallejo, 2019 UT 38, ¶ 102, 449 P.3d 39. In cases, such as the one before us, “where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony—the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” State v. Devey, 2006 UT App 219, ¶ 17, 138 P.3d 90. Though in this case we do not exclusively rely on such testimony because there was a “sort of reddish mark” on Wife’s collarbone and Arce told Deputy there was “some pushing and shoving,” we still restate today that the action of referring to the complaining witness as “the victim” by anyone in front of the jury is inappropriate. Again, we perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

  1. Prejudice

¶42        Ultimately, Arce has not shown that any of these alleged errors prejudiced him. There is not a reasonable probability that but for Arce’s counsel failing to object further to the State’s questioning of Wife, moving to strike, or asking for a curative instruction, the result of Arce’s trial would be different. As mentioned, the jury heard testimony from four witnesses, each of whom told the same story, namely, that Wife said Arce hit and choked her that night. The testimony of these four witnesses matched Wife’s own words in the statement she gave to Detective. Furthermore, the reason Wife provided to Deputy for dismissing the charges was not that she had lied but that she needed Arce to keep his job as well as his help with their children. As we point out above, even Arce in his statement to Deputy admitted there was “some pushing and shoving,” which is inconsistent with Wife’s recantation. And Arce did not explicitly deny that he hit, kicked, or choked Wife, instead stating only that he could not recall doing so. Most reasonable jurors would think that physical assault is something that one would remember having committed. Furthermore, and perhaps most convincingly, Wife’s own statement to Detective was entered into evidence for the jury to read. In short, finding that none of these alleged errors undermines our confidence in the outcome of this case, each of Arce’s claims of ineffective assistance of counsel fails for lack of prejudice. Moreover, because none of these alleged errors were sufficiently prejudicial alone, we, for the same reason, conclude that the errors do not cumulatively undermine our confidence in the outcome of the trial.[10]

CONCLUSION

¶43 Arce’s claim that the court erred by allowing the State to repeatedly compel Wife to invoke her Fifth Amendment privilege in front of the jury fails because the issue was not preserved. Furthermore, Arce’s claims of ineffective assistance of counsel fail because his counsel’s failure to object to Wife’s invocations, Deputy’s vouching for Wife’s credibility, and repeated references to Wife as “the victim” do not present a reasonable probability that but for Arce’s counsel’s failure the result of the proceeding would have been different. We therefore affirm Arce’s convictions.

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[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] A “grant of use immunity [prohibits] any prosecutorial use of [a witness’s] testimony or evidence gained from it” against the witness. State v. Morris, 2017 UT App 112, ¶ 17, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017).

[3] The State argues that she invoked the Fifth Amendment 45 times, but the discrepancy of two invocations is not dispositive in this case, so we will use Arce’s number moving forward.

[4] Though we make our decision on preservation grounds, it appears the State is correct that a witness cannot testify about a subject and later invoke a Fifth Amendment privilege in order to avoid cross-examination on that same topic. See Mitchell v. United States, 526 U.S. 314, 321 (1999); In re Flint Water Cases, 53 F.4th 176, 193 (6th Cir. 2022). This issue is addressed further below. See infra ¶ 36.

[5] The State argues that a valid claim of privilege “turns in part on the likelihood of future prosecution.” A witness may not “employ the privilege to avoid giving testimony that he simply would prefer not to give,” Roberts v. United States, 445 U.S. 552, 560 n.7 (1980); instead, the witness must face real—not remote or speculative—dangers, Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478 (1972). Therefore, a grant of immunity nullifies the witness’s privilege as it forecloses the possibility of subsequent prosecution. State v. Morris, 2017 UT App 112, ¶ 18, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017). Here, the State argues that while it did withdraw the written immunity offer, the offer was “irrelevant” as the State put on the record several times that it would not seek to have the court hold Wife in contempt for refusing to testify. We do not agree and fail to understand how a promise not to seek to have a trial court hold Wife in contempt is sufficient to rise to the level of granting her “effective blanket immunity,” as the State argues. Wife still faced the very real danger of prosecution for perjury, for which the State offered her no protection. Thus, the State did not provide Wife with immunity—either written or through promises not to charge her with contempt—and Wife’s Fifth Amendment privilege remained intact. However, the State is likely correct that the right had been waived for subjects about which she freely had already testified. And, as discussed, this issue was not preserved, so there is no need for further consideration of whether allowing the State to continue questioning Wife was an error and, if so, whether there was a reasonable likelihood of a more favorable outcome for Arce absent the questioning.

[6] Arce acknowledges that it was Wife’s counsel rather than his own who made the objection to Wife taking the stand knowing she would invoke her Fifth Amendment right. Despite this, Arce argues that the issue is preserved by primarily relying on Kell v. State, 2012 UT 25, 285 P.3d 1133. But Kell is distinguishable from the present case. In Kell, the question was whether an issue was preserved when the State opposed a criminal defendant’s rule 60(b) motion and the criminal defendant did not respond to the State’s arguments yet later sought to appeal the decision. Id. ¶¶ 9– 10. The State and a criminal defendant are not in an analogous adversarial position to the criminal defendant and nonparty witness, Wife, present here. Kell is simply inapposite.

[7] Arce does not claim the application of any exception to preservation.

[8] Arce points to State v. Bond, 2015 UT 88, 361 P.2d 104, for us to consider. But Bond is not particularly helpful here. The witness in Bond did not attempt to invoke his Fifth Amendment privilege to avoid answering a question regarding a subject about which he had testified previously. Id. ¶ 10Also, the analysis in Bond must be viewed in context. In Bond, the Utah Supreme Court was reviewing the denial of a motion for a mistrial—a trial court decision reviewed under an abuse of discretion standard—and an allegation of prosecutorial misconduct. Id. ¶¶ 13, 22. Thus, unlike the case before us, Bond does not address these issues as evidentiary rulings.

[9] We acknowledge that Arce has appended a transcript containing the invocations to his brief. But beyond the appendix, Arce’s brief makes no attempt to address the context of the invocations—referring to them only as a whole rather than providing any information as to the subject matter of the questioning that provoked them. Arce does not attempt to explain, for example, if one, two, or three questions might be permissible. Neither does he explain at which point the line would have been crossed to render his counsel’s inaction objectively unreasonable.

[10] “The cumulative-error doctrine requires us to reverse if (1) we determine, or assume without deciding, that two or more errors occurred and (2) we determine that the cumulative effect of those errors undermines our confidence that a fair trial was had.” ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 30, 397 P.3d 772.

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U.S. Marriage and Divorce Statistics

My name is Stephanie from flingorlove.com and honestly, I usually wouldn’t bother emailing about this, but I researched and gathered as much data and stats as I could about various divorce statistics and put it all together in a massive blog post (84 stats to be precise).

This is it here: https://flingorlove.com/divorce-statistics/

I thought it might be useful to you and your readers as a reference in your blog.

Stephanie

https://flingorlove.com/

Utah Family Law, LC | divorceutah.com | 801-466-9277

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In Re J.E. 2023 UT App 3, Voluntary Declaration of Paternity

2023 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.E.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

D.E., Appellant, v. STATE OF UTAH, Appellee.

Opinion

No. 20210921-CA

Filed January 20, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan No. 1198329

D.E., Appellant Pro Se

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Julie J. Nelson, Debra M. Nelson, Alexandra

Mareschal, and Kirstin Norman, Attorneys for

Amicus Curiae Utah Indigent Appellate Defense Division

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HARRIS, Judge:

¶1 D.E. (Father) obtained—at least for a while—parental rights regarding J.E. (Child) when he and Child’s mother (Mother) duly signed and filed a voluntary declaration of paternity (the VDP). Later, however, genetic testing revealed that Father is not Child’s biological father. Based on those test results, the guardian ad litem (the GAL) appointed to represent Child raised a challenge to the VDP, which the juvenile court sustained, later issuing an order invalidating the VDP and declaring it “void.”

¶2 Father now challenges that order, asserting that the GAL (on behalf of Child) had no right under applicable law to challenge the VDP. We first determine that we have jurisdiction to consider Father’s appeal. And on the merits, we conclude that the juvenile court correctly determined that, under the circumstances presented here, Child has statutory standing to challenge the VDP. On that basis, we affirm the court’s decision to reach the merits of Child’s challenge and to sustain that challenge. But the court should not have declared the VDP “void,” and we remand for correction of the language used in the court’s order and for such other proceedings as might be appropriate.

BACKGROUND[1]

¶3 In 2021, Father and Mother were residing together—but not married—with three children: then-one-year-old Child and his two older siblings. All three children are Mother’s biological children, and Father’s paternity had been established as to the older two children. At the time, both Mother and Father were uncertain whether Father was the biological father of Child, because they were both aware that Mother had engaged in sexual activity with both Father and another man in 2019, around the time Child had been conceived. But neither Father nor any other man had established paternity with regard to Child.

¶4 In early 2021, Father was arrested and charged with aggravated assault involving domestic violence, as well as commission of domestic violence in front of a child, related to an incident in which Mother accused him of attempting to smother her with a pillow in front of the children. The charging document labeled Father a “habitual violent offender,” explaining that he had previously been convicted of domestic violence against Mother in connection with a 2019 incident. Father remained incarcerated on these new charges for several weeks. Mother also obtained a civil protective order against Father, which remained in effect for several months, until she asked for it to be dismissed.

¶5 A few weeks after Father’s arrest, Mother was arrested and incarcerated on charges of drug possession. Mother later admitted that she had been using methamphetamine. At that point, the Department of Child and Family Services (DCFS) filed a petition seeking custody of the children, and the court granted that request at a subsequent shelter hearing.

¶6 A month later, in May 2021, Mother remained incarcerated—she was eventually released in August—but Father had been released from jail after the criminal charges against him were dismissed. The record before us does not disclose the reasons for the dismissal of the criminal case, but the dismissal occurred on the date set for preliminary hearing, and it was entered without prejudice. Neither the State nor the juvenile court viewed the dismissal of the criminal charges as an exoneration of Father; indeed, the court eventually scheduled an evidentiary hearing to consider whether Father had committed domestic violence against Mother and, at the conclusion of that hearing, found that all three children were “neglected by” Father.

¶7 After his release from jail, Father requested that the children be returned to his custody. The court denied that request, but did order that Father be allowed supervised visitation with at least some of the children.

¶8 At another hearing a couple of weeks later, the GAL first raised the issue of Child’s paternity, and asked that the court order genetic testing to determine whether Father was indeed Child’s biological father. Neither Father nor Mother opposed this request, and the court therefore ordered that genetic testing take place, an order that necessarily required that Father, Mother, and Child all separately submit to genetic testing.

¶9 On August 5, 2021, Father submitted a biological sample for genetic testing. Mother and Child, however, did not submit biological samples until August 19. On August 18, the day before Mother and Child submitted their samples, Father and Mother signed and filed the VDP. On that form, they both swore that they “believe[d]” that Father was Child’s biological father. And Father answered “no” to a question asking whether “the birth mother, child, and biological father” had “submitted to genetic testing.” The Utah Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father.

¶10 Following the filing of the VDP, Father (through counsel) filed a motion seeking visitation with Child, alleging that DCFS had been “not allowing” him to have visitation because the GAL “is opposed to the visits.” The GAL filed a response that asked the court to postpone its decision on visitation with Child until the results of the genetic testing were known. In that same opposition memorandum, the GAL raised a challenge to the VDP, specifically invoking sections 78B-15-302 and -307 of the Utah Code. In particular, the GAL asserted that Father had fraudulently answered some of the questions on the VDP, and asserted that, if the pending genetic testing excluded Father as Child’s biological father, the VDP could also be challenged on the ground that there had been a material mistake of fact. In reply, Father asserted that the VDP, which had been accepted by the Office of Vital Records and Statistics, gave him parental rights as Child’s father, and that he was therefore entitled to visitation. He also requested a hearing regarding the GAL’s challenge to the VDP.

¶11 In late September 2021, while Father’s motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child’s biological father.

¶12 Eventually, the court held an evidentiary hearing to consider Father’s motion for visitation. At that hearing, the court heard brief testimony, under oath, from both Father and Mother. After their testimony, the GAL asserted that Father should be denied visitation because, among other reasons, Father was not Child’s biological father. In connection with that argument, the GAL pressed the challenge to the VDP that she had raised in her opposition brief and asked for the VDP to “be declared void and be rescinded,” specifically asking for that relief to be “entered pursuant to [section] 78B-15-623” of the Utah Code (referred to herein as “Section 623”), a statutory provision the GAL had not mentioned in her opposition brief. Section 623 provides, in relevant part, that “[a] child is not bound by a determination of parentage” unless “the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing.” See Utah Code Ann. § 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP was subject to a challenge by Child because the results of the genetic testing indicated that Father was not Child’s biological father. In addition, the GAL pressed the arguments that had been raised in her brief, asserting that the VDP was fraudulent because Father had allegedly been less than candid when he stated that he “believe[d]” that he was Child’s father and when he answered “no” to the question on the form about genetic testing.

¶13 At the conclusion of the hearing, and after a brief recess, the court in an oral ruling granted the GAL’s request to invalidate the VDP, relying on Section 623 and on the fact that the genetic testing had conclusively determined that there was no biological relationship between Father and Child. Addressing Father, the court stated, “[Y]ou are not the father of [Child] at this point.” And the court declined Father’s invitation to order that he receive visitation with Child but, given Father’s established biological relationship with the other two children and given the fact that Father was “probably the only parental figure on the male side that [Child] has know[n],” the court nevertheless left the door open for DCFS to “allow” Father to have visitation with Child if DCFS believed that visitation would serve Child’s best interest. The court later signed a minute entry reflecting its oral ruling, therein declaring that the VDP “is void.”

ISSUES AND STANDARDS OF REVIEW

¶14 Father appeals the juvenile court’s decision to invalidate the VDP and to declare it void. At the center of Father’s challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts’ decisions. See State v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334 (“We review questions of statutory interpretation for correctness, affording no deference to the [trial] court’s legal conclusions.” (quotation simplified)).

¶15 But before reaching the merits of Father’s appeal, we must first determine whether we have jurisdiction to adjudicate it.[2]

“Questions about appellate jurisdiction are questions of law” that, by definition, arise for the first time in the appellate setting. See Zion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167,

¶ 21, 480 P.3d 1055 (quotation simplified); see also Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (“The question of whether an order is final and appealable is a question of law.” (quotation simplified)).

ANALYSIS

I. Jurisdiction

¶16 Before we may reach the merits of Father’s appeal, we must first assess whether we have jurisdiction to adjudicate it. For the reasons discussed, we conclude that we do.

¶17 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” Copper Hills Custom Homes LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified); see also Williams v. State, 716 P.2d 806, 807 (Utah 1986) (noting that one of the “traditional principles of appellate review” is “the final judgment rule,” which generally (subject to a few exceptions) prevents appellate courts from reviewing an appeal unless it comes “from a final judgment concluding all of the issues in the case”). The final judgment rule promotes efficiency by preventing the piecemeal litigation and seriatim appeals that would result if litigants were permitted, by right, to immediately appeal any adverse ruling by a trial court.

¶18 Conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” In re A.F.,2007 UT 69, ¶ 3, 167 P.3d 1070 (quotation simplified). Indeed, in juvenile courts, as in other courts, a “final order is one that ends the current . . . proceedings, leaving no question open for further judicial action.” Id. (quotation simplified). Certainly, an order in a juvenile court case that completely resolved all matters as to all parties would be a final order, just as a similar order would be in a district court case.

¶19 But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context. “In the child welfare arena, the determining factor in deciding if an order is final and appealable is whether it effects a change in the permanent status of the child.” Id. Because a child’s status can change more than once, and because a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved,” see In re K.F., 2009 UT 4, ¶ 36, 201 P.3d 985 (quotation simplified), “in child welfare proceedings, unlike traditional civil cases, appeals may be heard from more than one final judgment,” In re A.F.,2006 UT App 200, ¶ 8, 138 P.3d 65, aff’d, 2007 UT 69, 167 P.3d 1070 (quotation simplified). Therefore, a determination of whether a juvenile court order is final and appealable “requires pragmatic analysis of the order itself.” Id. ¶ 9.

¶20 Under this “pragmatic analysis,” “it is the substance, not the form, of the . . . order that matters . . . because the determination whether an order is final and appealable turns on the substance and effect of the order.” Id. (quotation simplified). Any order that effects a “permanent change in the child’s status vis-à-vis the child’s parent” is considered final. See In re K.F., 2009 UT 4, ¶ 36. Particular types of orders that are considered final include those “entered upon disposition of an adjudicated petition of abuse, neglect, or dependency” and those “terminating parental rights,” see id. (quotation simplified), as well as “orders that otherwise relieve a party from further litigation,” see In re A.F., 2006 UT App 200, ¶ 10. On the other hand, shelter orders and orders that “merely terminate reunification services and change the child’s permanency goal to adoption” are not considered final because they contemplate “further judicial action” regarding the parent and the child. See In re K.F., 2009 UT 4, ¶ 37.

¶21 Father asserts that the juvenile court’s order declaring the VDP void is final and appealable because it “effectively terminated the parental rights statutorily conferred upon him” through the VDP. We agree with Father, as does the State. From a finality perspective, the court’s order declaring the VDP void is analogous to an order terminating parental rights, because the order canceled theretofore-valid parental rights that Father had (at least temporarily) acquired by virtue of filing a voluntary declaration of paternity that was accepted by the Office of Vital Records and Statistics. See Scott v. Benson, 2021 UT App 110, ¶ 22 n.4, 501 P.3d 1148 (“A [voluntary declaration of paternity] is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”), cert. granted, 509 P.3d 196 (2022). In analogous contexts, we have determined that similar orders are final and appealable. See In re A.S., 2007 UT App 72U, para. 1 (per curiam) (holding that an order dismissing a putative father “from the termination case and denying a motion for genetic testing” was final and appealable because it “dismissed [the putative father] as a party and relieved him from further litigation”); see also In re A.F., 2006 UT App 200, ¶ 10 (stating that “orders that otherwise relieve a party from further litigation” are appealable).

¶22 The fact that litigation regarding Child continues in the juvenile court is not dispositive of the question of appealability of the subject order. See In re E.L.F., 2011 UT App 244, ¶ 5, 262 P.3d 1196 (recognizing that a “juvenile court’s retention of jurisdiction over a child does not necessarily defeat finality”); see also In re K.F., 2009 UT 4, ¶ 36 (stating that a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved” (quotation simplified)). The fact that the juvenile court left the visitation door slightly ajar for Father likewise does not defeat finality, under the unique circumstances presented here; the court’s order deprived Father of all parental rights, leaving DCFS with sole discretion to determine whether, and to what extent, Father may visit Child.

¶23 Applying a pragmatic analysis here, we conclude that the subject order, by eliminating all of Father’s claimed parental rights, effected a “permanent change in the child’s status vis-à-vis” Father, see In re K.F., 2009 UT 4, ¶ 36, and effectively ended Father’s involvement in the case. Under these circumstances, the order from which Father appeals must be considered final, and we therefore have jurisdiction to consider the merits of his appellate challenge.

II. The Merits of Father’s Appeal

¶24 We begin our analysis of the merits of Father’s appeal with a discussion of voluntary declarations of paternity, and by explaining how Father did—at least for a time—secure valid parental rights regarding Child. We then list some of the ways in which voluntary declarations of paternity can be challenged, and conclude that Child (through the GAL) had standing to raise one such challenge, and that Child’s challenge has merit. Accordingly, we conclude that the juvenile court correctly sustained Child’s challenge to the VDP, but should not have referred to it as “void.”

A

¶25 There are a number of ways for a parent to establish a legally valid parent-child relationship, many of which are “based on the notion that parents should generally have parental rights regarding their biological children.” See Scott v. Benson, 2021 UT App 110, ¶ 18, 501 P.3d 1148, cert. granted, 509 P.3d 196 (2022); see also Lehr v. Robertson, 463 U.S. 248, 256–57 (1983) (recognizing “[t]he intangible fibers that connect parent and child”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that a biological father’s interest “in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest,” constitutional protection). “In most cases, parental status is established, based on an assumed biological connection, simply by presumption of circumstance.” Scott, 2021 UT App 110, ¶ 19. For example, in the absence of a valid gestational agreement, a mother establishes a parental relationship with any child to whom she gives birth. See Utah Code Ann. § 78B-15-201(1)(a)(i) (LexisNexis 2018).

¶26 Some fathers also obtain parental rights by presumption of circumstance. For instance, a father-child relationship is established when a man “and the mother of the child are married to each other” when the child is born. Id. §§ 78B-15-201(2)(a), -204(1)(a). But a father who is not married to the mother of the child must take additional steps to establish his paternity.

¶27 One avenue open to unmarried biological fathers is to establish paternity by declaration, an option that—crucially— requires the written consent of the child’s mother. See id. §§ 78B15-301, -302. A successful declaration of paternity, “duly signed and filed, has the same effect as a judicial determination of paternity.” In re S.H., 2005 UT App 324, ¶ 15, 119 P.3d 309. To be effective, both the mother and declarant father must sign the declaration “in the presence of two witnesses” and make several statements “under penalty of perjury.” See Utah Code Ann§ 78B15-302(1). Of particular relevance here, the parties must also attest that the child “whose paternity is being declared” does not have a presumed, adjudicated, or declarant father, and they must “state whether there has been genetic testing and, if so, that the declarant man’s paternity is consistent with the results of the testing.” See id. § 78B-15-302(1)(d), (e). “A declaration of paternity shall be considered effective when filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B-15-302(9).

¶28 Father chose this avenue; he and Mother jointly signed and filed the VDP on August 18, 2021, after answering several written questions under penalty of perjury. As already noted, they both averred that they “believe[d]” Father to be Child’s biological father, and Father answered “no” to a question asking whether “the birth mother, child, and biological father [had] submitted to genetic testing.” The Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father. At that point, Father’s parental rights regarding Child were definitively established. See id. § 78B-15-305(1) (LexisNexis 2018) (stating that “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent”); see also Scott, 2021 UT App 110, ¶ 22 n.4 (“A declaration is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”); In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”).

B

¶29 Declarations can, however, be challenged after they have been accepted by the Office of Vital Records and Statistics. See Scott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of paternity are, however, subject to challenge.”). Applicable statutes permit several different types of challenges to validly filed declarations. For example, a declaration may be challenged as “void” if it fails to meet certain threshold criteria regarding the existence of another potential father. See Utah Code Ann. § 78B15-302(3) (referred to herein as “Section 302”). Alternatively, a “signatory” of a declaration may rescind it within sixty days, without specifying any reason. Id. § 78B-15-306(1) (referred to herein as “Section 306”). Further, after the rescission period has expired, a declaration may be challenged by certain parties “on the basis of fraud, duress, or material mistake of fact.” See id. § 78B-15-307 (referred to herein as “Section 307”). And as relevant here, Section 623 provides that “[a] child is not bound by a determination of parentage . . . unless . . . the determination was based on an unrescinded declaration of paternity and the declaration is consistent with genetic testing.” See id. § 78B-15-623(2).

¶30 Before the juvenile court, the GAL raised a challenge to the VDP and, by the time of the hearing, had elected to ground that challenge largely in Section 623.[3] The court accepted the GAL’s Section 623 argument, and Father challenges that decision here on appeal. For the reasons that follow, we conclude that the juvenile court correctly found merit in the GAL’s Section 623 challenge.

¶31 Section 623 begins by stating that “a determination of parentage is binding on . . . all signatories to a declaration . . . of paternity . . . and . . . all parties to an adjudication [of parentage] by a tribunal.” Id. § 78B-15-623(1). The next section of the statute provides as follows:

(2) A child is not bound by a determination of parentage under this chapter unless:

(a) the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing;

(b) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; or

(c) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.

Id. § 78B-15-623(2). The precise question presented is whether Section 623 gives a child the right to challenge a putative father’s duly filed declaration of paternity on the basis that the declaration is inconsistent with genetic testing results. We hold that it does.

¶32 The question before us is, at root, one of statutory interpretation. “When interpreting a statute, our primary objective is to ascertain the intent of the legislature, the best evidence of which is the plain language of the statute itself.” Taylor v. Taylor, 2022 UT 35, ¶ 28, 517 P.3d 380 (quotation simplified). In examining the language of a statute, “we do not view individual words and subsections in isolation; instead, our statutory interpretation requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.” Penunuri v. Sundance Partners Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (quotation simplified); see also State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (“We read the plain language of the statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” (quotation simplified)). And if this exercise “provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” Torrie v. Weber County, 2013 UT 48, ¶ 11, 309 P.3d 216 (quotation simplified). In accordance with these principles, we begin our analysis with an overview of the relevant statute’s structure.

¶33 The statute in question is the Utah Uniform Parentage Act (the Act), codified at Title 78B, Chapter 15 of the Utah Code. See Utah Code Ann. §§ 78B-15-101 to -902 (LexisNexis 2018). Section 623’s reference to “a determination of parentage under this chapter,” then, refers to any determination of parentage made under any of the various parts of the Act. See id. § 78B-15-623(2) (emphasis added). Part 3 of the Act governs voluntary declarations of paternity, see id. §§ 78B-15-301 to -313, and Part 6 of the Act governs judicial adjudications of parentage, see id. §§ 78B-15-601 to -623. Indeed, the term “determination of parentage,” as used in Section 623, has a specific statutory definition: our legislature has provided that a “determination of parentage” means either (a) “the establishment of the parent-child relationship by the signing of a valid declaration of paternity under Part 3,” or (b) “adjudication [of parentage] by a tribunal” under Part 6. See id. § 78B-15-102(9).

¶34 In this case, any parental rights claimed by Father are derived not from any judicial adjudication of paternity but, rather, from the VDP. Indeed, the Act is clear with regard to the effect of a properly filed declaration of paternity: “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent,” without the necessity of initiating judicial proceedings or obtaining a court order. See id. § 78B-15-305(1); see also In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”). Phrased in the language of Section 623, then, the “determination of parentage” at issue here took place pursuant to Part 3, not Part 6, and it occurred not in any courtroom but at the front counter (or its metaphorical online equivalent) at the Office of Vital Records and Statistics.

¶35 As noted, Section 623 provides that “[a] child is not bound by a determination of parentage” unless at least one of three criteria are met. See Utah Code Ann. § 78B-15-623(2). With regard to the specific “determination of parentage” at issue here, none of the three listed criteria are met.

¶36 First, the “determination of parentage” at issue in this case was not “based on an unrescinded declaration of paternity” that is “consistent with genetic testing.” See id. § 78B-15-623(2)(a). To be sure, the determination of parentage here was based on an “unrescinded declaration of paternity”; after all, Father’s only claim to paternity was made through the VDP, and neither Father nor Mother had exercised any rights they had, pursuant to Section 306, to rescind the VDP within sixty days of signing it. See id. § 78B-15-306. But the unrescinded VDP at the heart of Father’s paternity claim turned out to be entirely inconsistent with the genetic test results that came back in September 2021. For this reason, the “determination of parentage” at issue here was not based on a declaration of paternity that was “consistent with the results of genetic testing.” Id. § 78B-15-623(2)(a) (emphasis added). Thus, the first criterion is inapplicable.

¶37 The second criterion is likewise inapplicable, for two reasons. First, this criterion applies only to an “adjudication of parentage,” see id. § 78B-15-623(2)(b), and no such adjudication occurred here, where Father’s parental rights, if any, are derived under Part 3, from the VDP, rather than through a judicial process. And second, this criterion also depends upon “genetic testing” being “consistent with” the adjudication of parentage and, as already noted, the genetic testing in this case excluded Father from any biological relationship with Child. See id.

¶38     Finally, the third criterion has no application either. That criterion applies if “the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.” Id. § 78B-15-623(2)(c). To be sure, Child was represented by the GAL in the proceedings before the juvenile court, and is represented by the GAL in this appeal. But Child was not involved, in any way, in the “proceeding determining parentage” at issue here. Again, that “proceeding” occurred on August 18, 2021, when Father and Mother appeared at the Office of Vital Records and Statistics to fill out the VDP, and when that office accepted the VDP they filed. That proceeding took place entirely outside of court, and Child had no voice or representation therein. Accordingly, the third criterion is likewise inapplicable.

¶39 Because none of the three exceptional criteria apply here, Section 623 provides that Child is “not bound by [the] determination of parentage” in this case. See id. § 78B-15-623(2) (emphasis added). In our view, this language must necessarily mean that Child has the right to challenge the VDP.[4]

¶40 The words “not bound by” are not defined in the Act. In such a situation, we “interpret the statutory language according to the plain meaning of its text.” See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85 (quotation simplified). And in doing so, we give the words the meaning they are given in ordinary daily usage. See State v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d 1142 (“When construing a statute, words that are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage.” (quotation simplified)).

¶41 In our view, the words “not bound by” must include a right to challenge the determination of parentage. A child who has no right to challenge the determination in question, even in a case where none of the three statutory criteria applied, would effectively be bound by it. Stated another way, in order to be “not bound by” something, there must exist a way to get out from under its obligations. After all, the words “not bound by” would be deprived of all effective meaning if a child had no right to challenge the determination of parentage at issue. Even Father and the amicus curiae both acknowledge, in recently filed briefs, that Child has statutory standing to challenge the VDP under Part 6. For these reasons, we conclude that Section 623 provides Child the right to challenge the VDP—an unrescinded declaration of paternity upon which Father’s claim to paternity is based—on the ground that the declaration is inconsistent with “the results of genetic testing.” See Utah Code Ann. § 78B-15-623(2)(a).

¶42 Once it is established that Child has the right to mount a challenge to the VDP, we must turn to the merits of that challenge. And Father, here on appeal, does not seriously contest the merits of Child’s attack on the VDP. Father instead acknowledges, as he must, that the genetic testing excluded him as Child’s biological father, and that the genetic testing is, therefore, inconsistent with his claims to paternity under the VDP. Accordingly, the juvenile court correctly determined that Child’s Section 623 challenge to the VDP was meritorious.

¶43 But while the juvenile court’s ruling is correct on its merits, the court used incorrect nomenclature to describe the effect of its ruling. The court ruled that the VDP “is void,” thereby apparently purporting to invalidate it ab initio and render it without force or effect from the date it was filed. This was incorrect. A challenge to a declaration of paternity based on inconsistency with genetic testing is a challenge alleging “a material mistake of fact.” See id. § 78B-15-307(5) (stating that “genetic test results that exclude a declarant father . . . constitute a material mistake of fact”). And as we explained in Scott, the effect of a successful challenge on this basis—as opposed to a challenge grounded in Section 302 or Section 306—is “not that the declaration of paternity is rendered void from its inception” but, instead, that the “declaration will be set aside, on a going-forward basis.” See 2021 UT App 110, ¶ 40.

¶44 In our view, a challenge brought by a child under Section 623 alleging that genetic testing is inconsistent with a declarant father’s declaration is substantively similar to the type of challenge we examined in Scott. Neither challenge is grounded in Sections 302 or 306, statutory provisions that expressly provide that voidness will result from a successful challenge. And both challenges arise from the same set of circumstances, namely, genetic testing that does not match a putative father’s claims to paternity. We therefore hold that, where a child makes a successful Section 623 challenge to a declaration of paternity, the result is that the declaration “will be set aside, on a going-forward basis,” and will not be declared void from the date of its inception. See id. As applied to this case, these principles dictate that Father had legal parental rights for some three months, from August 18 through November 16, 2021, but that his parental rights ended, prospectively, with entry of the court’s order sustaining Child’s Section 623 challenge.

¶45 Finally, both Father and the amicus curiae—in recently filed supplemental briefs—raise the potential applicability of section 78B-15-608 of the Utah Code (referred to herein as “Section 608”), a statutory section that allows a court, under certain conditions, to “disregard genetic test results that exclude the . . . declarant father.” Father asserts, for the first time in his supplemental brief, that he should be entitled to a hearing to determine whether the genetic test results eliminating him as Child’s biological father should be “disregarded” pursuant to Section 608. But Father makes this request for the first time in this recent brief; he did not raise a Section 608 defense to the GAL’s challenge before the juvenile court, nor did he mention Section 608 in either his opening or reply brief on appeal. Under these circumstances, Father has raised this legal theory far too late for us to consider it in the context of this appeal. Cf. Viertel v. Body Firm Aerobics LLC, 2022 UT App 96, ¶ 11, 516 P.3d 791 (“Appellants are not permitted to raise matters for the first time in a reply brief.” (quotation simplified)).

¶46 The amicus curiae, for its part, asserts that it was “mandatory” for the juvenile court to have conducted a Section 608 inquiry, including a “best interest of the child” analysis, even in the absence of a request by Father for it to do so; in this vein, the amicus curiae argues that the juvenile court committed plain error by not engaging in that analysis sua sponte. In particular, the amicus curiae rests its argument on statutory language stating that the court “shall consider the best interest of the child.” See Utah Code Ann. § 78B-15-608(2) (emphasis added). But in our view, the amicus curiae overreads the statute.

¶47 As we interpret it, Section 608 does not compel a juvenile court, in every instance in which any challenge to a VDP is sustained, to undertake a Section 608 analysis even if none of the parties request it. Litigants are entitled to select the specific defenses they raise to an opponent’s claim. The general rule, applicable in both district and juvenile courts, is that parties must request specific relief in order for a court to award it. Our judicial process ordinarily does not require courts to step in and examine legal theories that the parties have not themselves raised. See State v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443 (“Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal to adjudicate their respective rights and obligations.”). In this case, Father—who was represented by counsel at the time—elected to defend against the GAL’s challenge to the VDP by calling into question the GAL’s (or

Child’s) right to even mount the challenge. Father did not raise Section 608 as a possible defense, and he did not ask the juvenile court—in the event it concluded that the GAL had standing to challenge the VDP—to disregard the results of the genetic testing pursuant to Section 608.

¶48 We take the amicus curiae’s point that, whenever a party does specifically invoke Section 608 and ask a court to disregard genetic test results, that court must “consider the best interest of the child” in determining whether to do so. See Utah Code Ann. § 78B-15-608(2). But courts do not have an obligation to sua sponte raise Section 608, and undertake its concomitant best-interest analysis, in every case in which they are asked to consider a challenge to a VDP.[5] See Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 41, 439 P.3d 593 (stating that “judges are neutral arbiters—not advocates,” and that judges “keep [themselves] out of the business of second-guessing the pleading decisions of the parties”); cf. Scott, 2021 UT App 110, ¶ 43 (noting that the lower court, in that case, turned to a Section 608 analysis only at the “request” of one of the parties). If a putative parent wants a court to take the rather drastic and unusual step of disregarding the results of genetic testing, it will ordinarily be the parent’s responsibility to raise the issue.

¶49 And even assuming, for the purposes of the discussion, that plain error review is available here, see Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42 n.10, 507 P.3d 357 (suggesting that plain error review may be available in certain types of civil cases, including termination of parental rights cases), we reject the amicus curiae’s assertion that, on the record before us, the juvenile court committed plain error by not invoking Section 608 sua sponte. Plain error occurs only when a court commits an obvious prejudicial error. See Johnson, 2017 UT 76, ¶ 20. Here, the juvenile court committed no obvious error. Nothing in Section 608 indicates that it is to be applied in every case, even sua sponte, regardless of whether any party ever invokes it. And the amicus curiae cites no appellate court case that so indicates. Where the law is not clear, a court does not commit obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (“To establish that the error should have been obvious to the trial court, [a litigant] must show that the law governing the error was clear at the time the alleged error was made.”).

¶50 For these reasons, the juvenile court did not plainly err by not sua sponte undertaking an analysis pursuant to Section 608. And because Father did not raise that issue either before the juvenile court or in his initial brief, we decline to address Father’s argument that the court should have conducted such an analysis. We offer no opinion, however, regarding whether the issue could properly be raised after remand, especially given the fact that the juvenile court left the door open to Father’s involvement in the case going forward.

CONCLUSION

¶51 We have jurisdiction to consider the merits of Father’s appeal, because the juvenile court’s order canceled the parental rights that Father had temporarily acquired by filing the VDP and thereby effected a permanent change in Child’s status regarding Father. But on the merits of that appeal, we conclude that the juvenile court correctly sustained the GAL’s Section 623 challenge to the VDP, even if the court should not have used the word “void” to describe the result of its ruling. We therefore affirm the juvenile court’s decision to sustain the GAL’s challenge to the VDP, but remand with instructions for the court to modify its order to indicate that it has prospective effect only, and for such other proceedings as may be appropriate.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] “We recite the facts in a light most favorable to the juvenile court findings.” In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d 1203 (quotation simplified).

[2] After recognizing this jurisdictional question, we issued a Sua Sponte Motion for Summary Disposition, explaining that this appeal was being considered for summary disposition “on the basis that this court lacks jurisdiction because the order appealed from was not a final, appealable order.” We then ordered the parties to submit briefing on the jurisdictional question, which they did. Later, we also provided the parties the opportunity to submit supplemental briefing on the statutory standing question. Father and the GAL submitted supplemental briefs, and an amicus curiae submitted a brief on this topic as well. We appreciate the assistance of the parties and the amicus curiae in submitting supplemental briefing.

[3] As noted already, the GAL’s pre-hearing briefing before the juvenile court invoked Sections 302 and 307, but not Section 623. In their briefing on appeal, the parties include some discussion of other potential avenues for challenge. No party invokes Section 306, and both the State and the GAL appear to concede that the GAL—apparently because Child is not a “signatory” to the VDP—does not have statutory standing to challenge the VDP under Section 307. But the State does appear to invoke Section 302 in connection with its argument that the VDP was “fraudulently executed,” and on that basis appears to ask us to affirm the juvenile court’s ruling on this alternative ground. We have serious doubts about the merits of this argument, primarily because none of the three criteria for voidness set forth in Section 302 are present here, but also because any evidence of fraud on the part of Father or Mother is thin at best: they were not sure whether Father was Child’s biological parent, but had a basis to “believe” that he was, and Father’s answer about the state of genetic testing was technically correct, because on August 18 neither Mother nor Child had yet submitted samples for genetic testing. But we need not delve deeper into the State’s alternative argument, because we affirm the substance of the court’s ruling under Section 623.

[4] After all, Part 6 of the Act expressly provides that “the child” may maintain “a proceeding to adjudicate parentage,” and thereby challenge a parent’s paternity. See Utah Code Ann. § 78B-15-602(1). All parties to this appeal agree that a child has statutory standing under Part 6 to challenge a parent’s paternity.

[5] The amicus curiae runs into the same problem with its other best-interest related argument. It points out that guardians ad litem have authority created by statute, and that they are appointed “to represent the best interest of a minor.” See Utah Code Ann. § 78A-2-803(1)(a)(i) (LexisNexis Supp. 2022). It asserts that the GAL in this case, by challenging Father’s paternity, acted outside Child’s best interest, pointing out that Child has no other father figure in his life, and offering its view that “it is difficult to see how it can be in a child’s best interest to challenge the paternity of the only father figure participating in the case.” We acknowledge this argument, and agree with the amicus curiae that guardians ad litem have a statutory obligation to carefully consider whether the actions they take on a child’s behalf are in the child’s best interest. But ordinarily any challenge to a guardian ad litem’s actions as being outside a child’s best interest must come from one of the parties rather than from a court sua sponte, and must be raised in the first instance in the district or juvenile court. No such challenge was levied here by any party before the juvenile court, rendering the merits of any such challenge inappropriate for appellate review.

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If your life partner has a low IQ, is divorce an option?

Yes, but not for the reason you may think.

In the age of no-fault divorce, you don’t really need to persuade the court to grant you a divorce. Divorce is essentially available on demand. Your spouse’s IQ need not have anything to do with it.

Some people think “no-fault divorce” means that “you can’t divorce me if I’m not at fault.” Not true.

No-fault divorce means that if you want to get a divorce, you don’t have to prove, as the reason for seeking a divorce, that your spouse has committed some kind of fault entitling you to a divorce. All you have to do is claim that there are “irreconcilable differences” between you and your spouse that have caused an irreparable breakdown in the marriage.

Before no-fault divorce was made the law in every state in the United States of America, one could not obtain a divorce unless his/her spouse had committed a “marital fault”. What constitutes marital fault? Each state has its own list, but generally speaking, marital fault includes:

  • adultery
  • impotency of the respondent at the time of marriage
  • cruelty
  • abandonment, desertion, neglect (failure of the spouse to provide necessary financial/temporal support)
  • insanity or severe mental illness
  • certain criminal convictions (usually a felony or those resulting in long-term imprisonment)
  • alcohol and drug abuse
  • contracting a “loathsome disease” (i.e., a sexually transmitted disease)

With no-fault divorce the law now, fault on the part of your need not exist to qualify you to file for divorce

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/If-your-life-partner-has-a-low-IQ-is-divorce-an-option/answer/Eric-Johnson-311

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Nix v. Nix – 2022 UT App 83- insufficient evidence of adultery

2022 UT App 83

THE UTAH COURT OF APPEALS

JILL NIX,

Appellee,

v.

ROLAND COMPTON NIX JR.,

Appellant.

Opinion

No. 20200691-CA

Filed June 30, 2022

Fourth District Court, Provo Department

The Honorable Darold J. McDade

No. 174402122

Seth D. Needs, Attorney for Appellant

D. Grant Dickinson, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.

TENNEY, Judge:

¶1        Under the Utah Code, there are ten “[g]rounds for divorce,” one of which is “adultery committed by the respondent subsequent to marriage.” Utah Code Ann. § 30-3-1(3)(b) (LexisNexis 2019). Interpreting this provision, our supreme court has held that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity. Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961).

¶2        When Jill Nix filed for divorce from Roland Nix Jr., she alleged “adultery committed by Roland during the marriage” as one of “the grounds for dissolution of this marriage.” During his subsequent deposition, Roland declined to answer a question from Jill’s attorney about whether he’d had extramarital sexual relations “since the marriage.” The district court later concluded that this non-response constituted an adoptive admission that Roland had committed adultery before Jill filed for divorce. Based on this conclusion, the court awarded Jill a divorce on the ground of adultery.

¶3        Roland now appeals that decision. As explained below, we agree that Roland’s non-response did not provide sufficient evidence to establish that Roland committed adultery before Jill filed her divorce petition. We accordingly reverse.

BACKGROUND[1]

¶4        Jill filed for divorce from Roland in August 2017. In her petition, Jill asserted two “grounds for dissolution of [the] marriage,” one of which was “adultery committed by Roland during the marriage.” Jill also asserted cruelty as an alternative ground for divorce. But that alternative ground was not further litigated below, the district court never ruled on it, and neither party has raised any issue about it on appeal.

¶5        In his answer, Roland “denie[d]” Jill’s “[g]rounds.” But Roland did not want the marriage to continue, so he counter-petitioned for divorce on the ground of irreconcilable differences.

¶6        Roland was later deposed. During his deposition, the following exchange occurred between Jill’s counsel, Roland, and Roland’s counsel:

[Jill’s counsel:] Have you had any sexual relations with someone other than Jill since the marriage?

[Roland:] It is none of your business.

[Jill’s counsel:] Counsel I am entitled to know.

[Roland’s counsel:] I question the relevance. I don’t think that adultery or anything has been alleged in the pleadings.

. . . .

[Roland:] We are separated and that is none of their business.

. . . . [brief break taken by the parties]

[Jill’s counsel:] We left on the question of adultery. Mr. Nix what is your response?

After another objection and then more discussion between counsel, Roland made a somewhat vague reference to a woman with whom he’d apparently had some type of relationship. A short time later, Roland was asked, “And have you engaged in sexual relations with this person?” Roland answered, “Yes.”

¶7        Roland and Jill eventually settled most aspects of their divorce. But when they weren’t able to agree on the ground for divorce, Jill’s counsel requested a trial on that issue. At a scheduling conference, however, the parties and the court agreed on an alternative procedure under which the parties would submit memoranda about the ground for divorce, after which the court would hear oral argument on the matter.

¶8        In her memorandum, Jill pointed to Roland’s non-response to the deposition question of whether he’d “had any sexual relations with someone other than Jill since the marriage.” From this, Jill asked the court to draw “an adverse inference” that Roland had “committed adultery subsequent to the marriage.” In addition, Jill pointed to Roland’s express admission that he’d “engaged in sexual relations with this person.”

¶9        In his responsive memorandum, Roland asked the court to deny Jill’s request for an adultery-based divorce. Roland asserted that under Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961), any adultery that he had committed after Jill filed for divorce could not constitute a ground for divorce. And Roland then argued that Jill had offered no evidence that he had “committed adultery prior to her filing for divorce.”

¶10      After briefing and then a hearing, the district court issued a written decision. There, the court agreed that under Vrontikis, “adulterous conduct subsequent to a divorce petition does not constitute fault,” but that “evidence of such conduct can be used to lend weight” to other evidence that the party had “committed adultery prior to the divorce petition.” (Emphases omitted.) The court then concluded that although Roland had expressly admitted to adultery in his deposition, this express admission had only been to “adultery subsequent to the divorce petition, but prior to divorce finalization.”[2]

¶11 Given its understanding of Vrontikis, the court next considered whether there was any evidence of pre-filing adultery. The court concluded that there was. In the court’s view, Roland’s non-response to the deposition question about whether he’d had sexual relations “since the marriage” qualified as an adoptive admission under rule 801(d)(2)(B) of the Utah Rules of Evidence. Notably, the court not only regarded this as proof “that Roland did commit adultery,” but also as proof “that Roland’s adultery caused the divorce,” i.e., proof that the adultery happened pre-filing. Thus, the court concluded that even if “Roland’s express admission [was] not, stand[ing] alone, a grounds for fault, the adoptive admission satisfie[d] Jill’s burden to show that Roland’s adultery caused the divorce.” Based on this, the court later “awarded Jill a decree of divorce on the grounds of adultery.”

¶12 Roland subsequently filed a motion under rule 59 of the Utah Rules of Civil Procedure “for [a] new trial or for an alteration of judgment on the issue of grounds for divorce.” Roland challenged the district court’s ruling on several fronts, including procedural fairness, incorrect application of the adoptive admission standard, and insufficiency of the evidence. After Jill opposed the motion, the court denied it. Roland timely appealed.

ISSUE AND STANDARD OF REVIEW

¶13      Roland challenges the district court’s denial of his rule 59 motion. As he did below, Roland assails this ruling for several reasons. We need address only one of them: Roland’s contention that there was insufficient evidence to support the court’s determination that he committed adultery before Jill filed for divorce.

¶14      A district court ordinarily has “some discretion in deciding whether or not to grant a new trial.” Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988). But because Roland’s “challenge rests on a claim of insufficiency of the evidence, we will reverse only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict.” In re Estate of Anderson, 2016 UT App 179, ¶ 7, 381 P.3d 1179 (quotation simplified); accord Hansen, 761 P.2d at 17.

ANALYSIS

¶15      The district court determined that Roland had committed adultery before Jill filed for divorce. It based this determination on Roland’s non-response to a question about this subject in his deposition, which the court regarded as an adoptive admission of pre-filing adultery.

¶16      On appeal, Roland first argues that the district court erred in concluding that his non-response qualified as an adoptive admission. But we need not decide whether this was so. Even assuming for the sake of argument that the non-response did qualify as an adoptive admission, the court was still required to point to some evidence that Roland had committed adultery before Jill filed for divorce. See Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961) (holding that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity).

¶17      Roland argues that there was no such evidence. Of note, Roland points out that, in the deposition exchange at issue, he “was never specifically asked whether he had had sexual relations with someone other than Jill since the marriage, but prior to the filing of the petition for divorce.” Having reviewed the portion of the deposition that is in the record, we agree. While Jill’s counsel asked Roland whether he had engaged in extramarital sexual relations, Jill’s counsel never asked Roland when he had done so. As a result, with respect to the critical issue of timing, the question and non-answer that supported the court’s adoptive-admission determination were silent.

¶18 Jill nevertheless points to Roland’s express admission of adultery. But on this, the district court only found that Roland had expressly admitted to postfiling adultery, and Jill has not challenged the court’s temporal limitation of its own finding on appeal. In any event, we’ve reviewed the exchange ourselves. We see nothing in it in which Roland said that his extramarital conduct was limited to post-filing behavior, but we also see nothing in it in which he admitted to any pre-filing conduct. Instead, as with the (alleged) adoptive admission, the timing of Roland’s behavior simply never came up.

¶19      This same defect exists with respect to the small amount of other evidence that Jill provided below to inferentially support her claims about Roland’s adultery. For example, Jill provided the court with a check that Roland had given her for alimony. This check was embossed with a picture of Roland and another woman, and in the identification block in the upper corner, it identified the other woman’s last name as “Nix.” Even accepting Jill’s contention that this could inferentially show that there was a sexual relationship between Roland and the other woman, what matters here is that the check was dated September 2019—which was after Jill had filed for divorce.

¶20      This leaves us with Jill’s final argument, which is to rely heavily on the favorable standard of review. Because Roland challenges the district court’s ruling on sufficiency grounds, we’re required to view the evidence in the light most favorable to the district court’s determination. But Roland’s argument presents us with a “no evidence” challenge—i.e., he argues that “even with the evidence in the record, nothing would demonstrate that . . . Roland committed adultery prior to the filing of the Petition for Divorce.” And to defeat such a claim, Jill “need only point to a scintilla of credible evidence from the record that supports the finding of fact in order to overcome [Roland’s] ‘no evidence’ assertion.” Wilson Supply, Inc. v. Fraden Mfg. Corp., 2002 UT 94, ¶ 22, 54 P.3d 1177.

¶21 She hasn’t. Even on such a review, there must be some evidence to support the determination in question. As we have explained in another context, a “reviewing court will stretch the evidentiary fabric as far as it will go,” but “this does not mean that the court can take a speculative leap across a remaining gap in order to sustain a verdict.” State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 (quotation simplified). Here, the evidence demonstrates that Roland engaged in sexual activity with another woman before his divorce was finalized. After all, he expressly admitted as much. But Vrontikis requires evidence of adultery at a particular time—namely, before the petitioner filed for divorce. Jill points to no evidence, and we see none, that even inferentially says anything about when Roland engaged in extramarital sexual activity. Without such evidence, the district court’s finding that Roland had engaged in pre-filing extramarital sexual relations cannot stand. We accordingly reverse for insufficient evidence.[3]

CONCLUSION

¶22 There was insufficient evidence to support the district court’s determination that Roland committed adultery before Jill filed for divorce. We accordingly reverse that decision and remand this case for further proceedings consistent with this opinion.[4]


[1] Because the parties share the same last name, we’ll follow our normal practice and refer to them by their first names, with no disrespect intended by the apparent informality. Also, for purposes of consistency and readability, we’ll use the parties’ first names (and corresponding pronouns) when quoting references to them from the record or the briefing, and we’ll do so without using brackets to note any such alterations.

[2] We note that Roland did not actually draw this chronological line in the portion of the deposition in which he made his express admission. But neither party has challenged the court’s determination that the express admission was only to post-filing adulterous conduct.

[3] Our determination leaves a potential wrinkle about what should happen next. At the close of his brief, Roland asks us to not only reverse on insufficiency grounds, but also to “alter the Ruling” ourselves to grant him a divorce on “the grounds of irreconcilable differences.” Roland provides us with no authority that establishes our ability to modify an order in this manner, however, so this request is inadequately briefed. Moreover, Jill petitioned for divorce on an alternative ground, but neither party on appeal has competently briefed the question of whether Jill would be entitled to continue litigating that ground if we reverse the district court’s adultery-based decree. Without such briefing, we decline to decide the question in the first instance.

[4] Jill has asked for her attorney fees on appeal. See Utah R. App. P. 24(a)(9). Because she is not the prevailing party in this appeal, we deny her request.

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Do courts make awards in divorce to “punish” adultery?

Do courts make awards in divorce to “punish” adultery? Great question.  

Adultery is considered a fault-based ground for divorce and a factor that can be considered when the trial court decides matters of alimony, property division, and child custody.  

I will answer this question according to what Utah statutory and case law provides.  

Utah Code § 30-3-5(9)(b) provides, “The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.”  

Utah Code § 30-3-5(9)(c) states that “‘Fault’ includes engaging in sexual relations with an individual other than the party’s spouse, if such wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship.  

Most recently, the Utah Supreme Court discussed this very question in the divorce case of Gardner v. Gardner (Volume 425 Pacific Reporter 3rd, page 1134, decided in 2019. In that decision the Supreme Court stated: 

[C]ourts should keep in mind that the ultimate purpose of any property division or alimony award is to “achieve a fair, just, and equitable result between the parties.” For this reason, courts should consider fault only in an attempt to balance the equities between the parties. In other words, where one party’s fault has harmed the other party, the court may attempt to re-balance the equities by adjusting the alimony award in favor of the party who was harmed by that fault.[footnote 56] 

Footnote 56 states: 

We note that some Utah courts have struggled to articulate an appropriate role of fault in alimony determinations in light of our case law suggesting that the purpose of alimony is not to punish. See Mark v. Mark, 2009 UT App 374, ¶ 17, 223 P.3d 476 (“[I]f a trial court uses its broad statutory discretion to consider fault in fashioning an alimony award and then, taking that fault into consideration, adjusts the alimony award upward or downward, it simply cannot be said that fault was not used to punish or reward either spouse by altering the award as a consequence of fault.”). But other Utah courts have concluded that fault may be considered without constituting punishment if it is used only to rectify the inequity caused by the fault. See Christiansen v. Christiansen, 2003 UT App 348, 2003 WL 22361312 at *2 (“Fault may correctly be considered by the trial court without penalizing the party found to be at fault.”); see also [Wilson v. Wilson, 5 Utah 2d 79, 296 P.2d 977, 979 (1956)], 296 P.2d at 980 (explaining that equitable factors often cause courts to impose permanent alimony on “erring” spouses); [Riley v. Riley, 138 P.3d 84 (Utah Ct. App. 2006)], 2006 UT App 214, ¶ 24, 138 P.3d 84 (affirming the district court’s consideration of a husband’s fault as an important “factor in fairness to [Wife]” (alteration in original)). As this latter line of cases suggests, fault may be considered as long as it is used as a basis to prevent or rectify an inequity to the not-at-fault spouse. So in reviewing an alimony determination involving fault, Utah appellate courts should focus on whether a fault-based modification of an alimony award helped “achieve a fair, just, and equitable result between the parties” rather than on whether it was punitive in nature. [Dahl v. Dahl, 2015 UT 79, ¶ 168, ––– P.3d ––––], 2015 UT 79, ¶ 25, ––– P.3d –––– (citation omitted) (internal quotation marks omitted). 

With this in mind, could a court (a court, not all courts) award more alimony, divide marital property unevenly, or restrict custody or parent-time due to one of the spouse’s adultery to punish adultery? Yes, of course, even if the court went to great pains (sincerely or not) to articulate the alimony decision as not being punitive in nature.  

Some judges (some, not all) allow their personal antipathy for an adulterous spouse their impartiality and justify disregarding the law in favor of doing what the judge “feels is right” instead. And yes, it can happen to you. 

Bottom line: If you are in adulterer, and a serial and/or un repentant adulterer at that, it should come as no surprise to you that your adultery will do you no favors when it comes to the way the court can and may treat you in a divorce action. Fair or not, that is the nature of the way many people (and judges are people) view and treat adulterers. Does this mean that if you are in adulterer you should expect to be treated unfairly by a court? I think your odds are about 50-50, in my professional opinion. Do those odds mean that you should lie about adultery, if you believe you can get away with it? No, and for two reasons: 1) it is wrong to lie; and 2) if you commit adultery, then compound the problem by lying about it and get caught, you only increase your odds of being mistreated by the court. And odds are that if you lie about adultery you will be caught. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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What are the grounds for filing for a divorce in Utah?

First, you need to understand that Utah, like every other state in the U.S. has what are known as a “no-fault divorce law”. No-fault divorce means that you don’t have to plead or show that your spouse committed any kind of marital “fault” to obtain a divorce. Previous to the creation of no-fault divorce laws, you could not get a divorce unless you could prove your spouse had committed one or more of the recognized faults constituting grounds for divorce.  

Utah’s no-fault ground for divorce is the “irreconcilable differences of the marriage” basis (Utah Code § 30-3-1(h)). If you assert irreconcilable differences as your ground for divorce, you do not have to prove any kind of fault to obtain a divorce on that ground. Because it doesn’t matter whether your spouse wants a divorce too– you can prove that there are irreconcilable differences of the marriage by simply saying that you subjectively feel that there are irreconcilable differences. Sometimes a court might ask you to explain in more detail what the irreconcilable differences in your marriage are, but courts will accept something as simple and ambiguous statements like “we are not compatible anymore” or “our differences prevent the marriage from continuing” or “our differences have rendered the marriage unsalvageable”.  

Fault-based grounds for divorce still exist, which means that one can still assert one or more of these faults as grounds for divorce, but it’s not necessary to assert fault-based grounds to obtain a divorce. 

I have provided for you below Section 30-3-1 of the Utah Code, which articulates both the no-fault ground and all the other legally recognized grounds for divorce in Utah. 

Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter. 

(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. 

(3) Grounds for divorce: 

(a) impotency of the respondent at the time of marriage; 

(b) adultery committed by the respondent subsequent to marriage; 

(c) willful desertion of the petitioner by the respondent for more than one year; 

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; 

(e) habitual drunkenness of the respondent; 

(f) conviction of the respondent for a felony; 

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; 

(h) irreconcilable differences of the marriage; 

(i) incurable insanity; or 

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation. 

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Judge says stay away from my paramour. Can judge do that?

Judge says stay away from my paramour. Can judge do that?

I became pregnant by my paramour after my husband and I separated. The court order states we are not to have paramours around our child. Will the judge take custody from me if I have my paramour around due to the situation?

I assume that your question is based upon a situation in which:

  • you and your husband have a child together (we’ll call that child “Child A”).
  • you and your husband are separated.
  • there is a divorce case pending, and the court has ordered that your paramour can not be around Child A (which is not an unusual order for courts to make, by the way).
  • at some point, whether before or after separation, you were impregnated by your paramour.

Now that you are pregnant by your paramour, it appears that both you and your paramour wants to be together to support one another during your pregnancy and be a witness to the miracle of birth as it unfolds. That’s understandable.

But there’s this court order that prohibits you from being with your paramour when you are with Child A. And you appear to want your paramour with you when you are with Child A. And you wonder whether the court would take custody of Child A from you if you violate the court’s order.

Your questions are essentially: is the court’s order fair? And will I lose custody if I disobey the court’s order?

The answers to your question (and for anyone in your situation) are:

Yes, the court’s order is fair. Reasonable minds can differ as to whether it is necessary that you be ordered to bar your paramour from being with you when Child A is also with you, but if a court concludes that having the paramour around might confuse the child as to who the child’s parent is and that exposing a child to adulterous relationships and/or that shacking up is morally and pragmatically unwise is well within a judge’s rational and sound discretion.

Yes, a court could base, in whole or in part, a decision to award custody of Child A to your husband upon the fact that you are disobeying its order barring you from being with your paramour when you are with Child A. Why? Because violating court orders shows that you cannot be trusted, that you place your interests ahead of law and order and/or ahead of what the court deems best for your child. Solution: don’t have your paramour around when you are scheduled to spend time with Child A. Is this hard? Perhaps. Is it worth it to ensure you don’t lose custody or parental rights? Of course.

https://www.quora.com/I-became-pregnant-by-my-paramour-after-my-husband-and-I-separated-The-court-order-states-we-are-not-to-have-paramours-around-our-child-Will-judge-take-custody-from-me-if-I-have-my-paramour-around-due-to-the/answer/Eric-Johnson-311?prompt_topic_bio=1

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Would you tell someone that his/her spouse is cheating?

Would you tell someone that his/her spouse is cheating?

First, I need to make clear that my answer is in my capacity as just a member of the public. If a client of mine (I am a divorce attorney) was having an extramarital affair and disclosed this to me in my capacity as his/her attorney, I would be prohibited from notifying my client’s spouse of my client’s infidelity).

Second, let’s get two definitions down: 1) cuckold: a husband of an adulterous wife; and 2) cuckquean: a wife with an adulterous husband.

The question: Would you tell someone that his/her spouse is cheating?

My answer: If I knew it and could provide independently verifiable evidence of it, yes, I would. It may not be welcome news (to say the least) to the cuckold/cuckquean, but he/she does not deserve to be fooled and humiliated, potentially robbed of family resources spent on the paramour, and potentially placed at risk of contracting a sexually transmitted disease by being kept in the dark. It appears clear to me that I have a moral duty to notify the cuckold/cuckquean when I have the power to take steps to protect him/her and the family’s children. The truth may hurt, but ignorance will hurt even more.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Would-you-tell-someone-that-their-husband-is-cheating/answer/Eric-Johnson-311?prompt_topic_bio=1

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What happens after an affair when you have kids?

What happens after an affair when you have kids? I will answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.

If you have had an extramarital affair, it generally will not do your divorce case any favors, will not win you any sympathizers.

But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).

Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.

While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.

If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.

Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.

Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what Utah Code § 30-3-5(9)(c)) provides:

“The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony” and “”Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship: engaging in sexual relations with an individual other than the party’s spouse[.]”

What does this mean?

The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)): “Substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce.

So, when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce. And this: “Under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.”

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What happens after an affair when you have kids?

What happens after an affair when you have kids?

I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.

If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.

But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).

Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.

While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.

If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.

Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.

Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

(i) engaging in sexual relations with an individual other than the party’s spouse[.]

(See Utah Code § 30-3-5(9)(c))

What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):

¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.

¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.

*****

¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”

¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.

¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.

¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.

¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.

¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Should people be allowed to file “alienation of affections” law suits?

Allowed to? Yes. I believe that if one can prove that an otherwise happy marriage was destroyed by a homewrecker, one should have a legal cause of action for alienation of affection. But I am in the minority. And indeed, some (though few) states still allow alienation of affection law suits. In fact, Kevin Howard sued in August 2017 under North Carolina’s alienation of affection law and was awarded $750,000 in August of 2019.

Would I advise it generally? No. Alienation of affections cases are becoming increasingly unpopular. Most states have outlawed a cause of action for alienation of affections. Those states that who retain the cause of action make it hard for people to prevail. When people call me asking whether it would be a good investment to sue for alienation of affections, I tell them no. Odds of success are low, costs of litigation are high. Alienation of affections cases are unpopular with courts. In today’s world there are more satisfactory and cost-effective ways to deal with alienation of affections than suing.

To prove alienation of affection in Utah (where I practice family law), the plaintiff must establish that the defendant

  1. wilfully and intentionally alienated the spouse’s affections
  2. resulting in the loss of the comfort, society and consortium[1] of the spouse, and
  3. (to justify punitive damages) a charge of malice.

Now how easy do you believe it would be to prove that somebody willfully and intentionally “stole” your unwilling spouse away? The defendant will argue that your spouse chose to step out on you (and then likely provide the court with a a laundry list of reasons for doing so, whether good or bad, whether true or false), not that your spouse was duped into leaving a perfectly happy marriage. This is what makes alienation of affection cases so difficult to win.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-you-agree-with-being-able-to-sue-the-person-your-spouse-cheated-on-you-with-under-alienation-of-affections-laws/answer/Eric-Johnson-311

[1] The marital alliance between a Husband and Wife and their respective right to each other’s support, cooperation, aid, and companionship. Loss of consortium is an actionable injury for which money damages may be awarded. The loss of the love, sexual relations, and services of a spouse are being considered tangible injuries. (https://legal-dictionary.thefreedictionary.com/consortium).

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Do most marriages end in divorce because of infidelity or money issues?

I think infidelity, IF you define infidelity broadly, meaning not simply adultery but a general lack of commitment to one another. Lack of devotion, care, and consideration for your spouse leads to indifference, then apathy, and eventually, contempt.

Finances can and do put a strain on a marriage, whether that be too little money or too much money, but any couple can survive financial strains if they are committed to each other.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-most-marriages-end-in-divorce-because-of-infidelity-or-money-issues/answer/Eric-Johnson-311

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Hypothetically speaking, would you divorce over adultery, if you have kids?

Not simply because of an affair, no.

It is certainly understandable if one desires to divorce a spouse who has committed adultery. The law understands this as well, which is why adultery is grounds for divorce in every state in this country.

But neither the law nor the Judeo-Christian religions mandate divorce in the event of adultery. Even most areligious people agree that adultery does not necessitate divorce. Indeed, public policy, every religious creed I know of, and the mental health care community discourage divorce generally, even if there may be a “fault” basis for divorce. Why might that be?

Adultery will almost always shake the innocent spouse’s trust in the adulterer. Adultery can so deeply hurt and anger the innocent spouse as to make him or her feel that forgiveness is impossible.

Some adulterers are unrepentant. They are therefore impossible to trust. Worse, their promiscuity poses a literal threat to the health and life of the innocent spouse. Their chronic infidelity raises the realistic specter of abandonment of the innocent spouse and children, if there are any. Clearly, there are situations in which adultery may be reason enough for divorce.

Almost every divorce, however, will harm children. Even the end of a dysfunctional marriage leaves children feeling unmoored, betrayed, rejected, and insecure. Sometimes a divorce is necessary for the children’s immediate and long-term safety and well-being (both physical and emotional), even if it is painful and traumatic for them.

One of the incalculably priceless benefits of marriage is having a family because children help to strip a husband and wife of many vices they might not otherwise have chosen to give up. The choice to be a parent is a choice to make sacrifices that ultimately create—by an order of magnitude—a more meaningful, worthwhile life.

When you commit to being a good parent, you inherently commit to becoming a far better person generally. Committing to being a good parent necessarily requires committing to being a better spouse. These facts give new and deeper meaning to the phrase “staying together for the sake of the children.” If a husband and wife find it difficult to overcome the effects of adultery on themselves, they may discover that staying together for the sake of, for the love of, for the protection of and for the benefit of their children will reveal to them why and how they can and should repent, forgive, and recommit to each other.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Hypothetically-speaking-would-you-divorce-your-spouse-if-you-found-out-they-were-cheating-on-you-even-though-you-have-children-together/answer/Eric-Johnson-311

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What happens if marriage is abolished, since there are too many divorce rates and cheating affairs?

If that happens, then we will then have taken another step—and a big one—on the road to hell.

Although the old joke, “the leading cause of divorce is marriage” may be humorous, it’s terrible logic. Abolishing marriage would not “solve” divorce problem, it would just lead to more of the ills that befall a society where marriage and family are not valued and protected.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-happens-if-the-law-cancels-and-forbids-marriage-since-there-are-too-many-divorce-rates-and-cheating-affairs/answer/Eric-Johnson-311

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If someone has an affair with one he/she knows is married, which offense is greater: the adulterer or the home wrecker?

If someone buys kiddie porn from one who is selling it, who is the worse of the two? Neither. They are both criminals. Two people who knowingly engage in an adulterous affair are both equally wrongdoers.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/If-a-spouse-has-an-affair-with-someone-that-knows-they-are-married-who-has-made-the-greater-offense-to-the-marriage-the-adulterer-or-the-homewrecker/answer/Eric-Johnson-311

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If my spouse cheats, and we divorce will I get custody of my children?

In response to the question, “If my spouse cheats, and we divorce, will I get custody of the children because of my spouse’s infidelity?,” the answer is unequivocally “no.” No state in the United States awards custody to the cheated-on parent, if the other parent has committed adultery.

And in my opinion (and while I see adultery as harmful to marriages and families), adultery has very little impact on the child custody award analysis. Unless one can connect a parent’s adultery to some deleterious effect on the children, it is hard to claim that adultery makes a parent unfit to exercise legal or physical custody of his/her children.

In response to the question, “How much does divorce typically cost?,” the answer is, according to LegalZoom (and I don’t know how reliable this claim is) between 15,000 and $30,000, depending upon what state you live in and its costs of living and depending upon the complexity and difficulty of a particular case. Some cases are resolved by a quick settlement for just a few hundred dollars, and some divorces cost millions of dollars before they are done.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/If-my-spouse-cheats-and-we-divorce-is-it-true-that-I-ll-get-custody-of-my-children-How-much-does-divorce-typically-cost/answer/Eric-Johnson-311

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What are some of the major causes behind a divorce?

Lack of commitment/incompatibility.

“Marriage is a counter-cultural act in a throwaway society.”

—Dr. William H. Doherty, noted marriage scholar and therapist

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-some-of-the-major-causes-behind-a-divorce/answer/Eric-Johnson-311

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