Category: Divorce Lawyers

Special masters, parent coordinators, and the infantilization of parents

Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.

The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.

In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.

Utah Family Law, LC | | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 3 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires” (See Utah Code Section 78A-2-705(13)(d)). Here is how I analyze the argument that PGALs state what they allege to be a child client’s intentions and/or desires:

  • If an attorney makes an argument pertaining to what the court’s child custody or parent-time orders should be, that argument must be based upon evidence duly admitted into the court record, or there is no evidence supporting the argument. An argument unsupported by the evidence in the record is basis for objection. An argument based upon speculation is basis for objection.

  • A recommendation made by a PGAL is an argument. The elements of a recommendation and an argument are the same. Without a basis of duly admitted evidence in the court record for support, a PGAL’s recommendation is without support.

  • Implicit in an argument are underlying facts cited to support the argument. A PGAL cannot argue that “this is the child’s desire” without citing evidence of the child’s desire. A PGAL who claims to know a child client’s intentions and desires to the court is, by definition, testifying, not arguing. To argue that we can discern a child’s intentions and/or desires from the evidence in the record still requires evidence in the record to which to cite in support of the argument. An argument cannot be a substitute for evidence. An argument is not an argument without evidentiary support.

  • If a PGAL bases his arguments to any degree upon his child client’s communication of the child’s intentions and desires (whether to the PGAL or to someone else), the child client must have first communicated his/her intentions and desires. If a PGAL then reports to the court those attorney-client communications on the subject of the client’s intentions, that is still either 1) hearsay or inferential hearsay or 2) the witness’s proffered testimony that entitles a party to cross-examine the witness at the very least.

  • If a PGAL claims to have discerned a client’s intentions and desires without having received express communication from the client as the client’s intentions and desires (such as, for example, not conversing or corresponding in writing, but instead monitoring the child’s communications with other people or observing the child’s behavior), then the PGAL would be acting as a witness.

  • If a PGAL is the attorney for a party to the case, then the PGAL does not get to testify for the client. And if the PGAL proffers a client’s testimony, then that testimony is subject to cross-examination.

  • A PGAL cannot “argue what my client wants” without there being some evidence that what the PGAL asserted “the client wants” is, in fact, what the clients want. With parties that’s fairly easy because they will have filed a pleading stating what they want. If there is any question as to whether the pleadings are not those of the party, then the party can either indicate that spontaneously or be asked to verify or deny it. With child clients of PGAL there are rarely, if ever, pleadings filed with the court(as the term is properly defined, i.e., a formal statement of a cause of action, not as the term is carelessly thrown around to mean documents filed with the court) by the children through their counsel. Even if the PGAL had somehow filed pleadings in the action AND the court recognized the children as parties to the action, their PGAL attorney cannot testify for them.


  • Advocacy of a PGAL client’s desires requires evidence of the child client’s desires. Evidence of the child client’s desires requires a record that the child expressed/articulated those desires; otherwise, we would find ourselves in a situation where the PGAL could literally fabricate “argument” on the basis of nonexistent evidence and get away with it clean. That is clearly not how the law and the rules of evidence apply.

Utah Family Law, LC | | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 2 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires”. (See Utah Code Section 78A-2-705(13)(d))

When a PGAL tells a court, “I’ve spoken to my client, and based upon those discussions, I can tell you that his/her intentions and desires are . . .” is hearsay or, at the very least, inferential hearsay. It can’t be anything else. Such a hearsay declarant is at least subject to cross examination (URE 806).

There is a pervasive belief among Utah family law attorneys and judicial officers that a child represented by a PGAL cannot even be cross-examined. There is no legal authority for this. Indeed, all legal authority is to the contrary.

Children testify in Utah juvenile court proceedings, and when they do, they often do under various circumstances (regarding child custody and parent-time) that are substantively indistinguishable from testifying in a child custody and parent-time in a divorce or district court child custody case. When district courts try to make a distinction between testifying in juvenile court and barring testimony in district court, they fail. They must. It is a distinction without difference.

I really do not understand why everyone frames (or tries to frame) asking questions of children who are the subject of a child custody and/or parent-time dispute as inherently harmful to children. One can ask certain questions that harm, or elicit answers that harm, but all forms of questioning are not innately harmful to children. Moreover, there is a level of harm that is, frankly, justified when the value of the testimonial evidence elicited is greater than the harm caused or that may be caused (it’s why we jail witnesses who are afraid to testify against the mob, yet put them in witness protection). Where there’s a will, there’s a way.

Unless they are very young, children are not so ignorant as to have no idea what is happening in a child custody dispute case. They know that if there is a dispute over custody that one parent will be unhappy. The children aren’t surprised when one parent or both parents try to lobby to support their candidacy for “best parent” or “custodial parent”. They aren’t surprised if a court wants to know what the children have experienced, how children feel, and what the children want on the subject of the child custody and parent-time awards.

There are clearly ways to obtain valuable evidence that children and only children are uniquely able to provide (in the form of their about their experiences, observations, feelings, opinions, preferences, and desires on the subject without it harming or unduly harming them.

Utah Family Law, LC | | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 1 of 3

Utah Code § 78A-2-705 provides that, “The court may appoint an attorney as a private attorney guardian ad litem to represent the best interests of the minor in any district court action when: child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the court has made a finding that an adult party is not indigent as determined under Section 78B-22-202; or the custody of, or parent-time with, a child is at issue.

What is a guardian ad litem? According to Black’s Law Dictionary, a guardian ad litem is a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent adult or on behalf of a minor child party. At first blush, the concept of a guardian ad litem sounds pretty good, right? Unfortunately, the way private guardians ad litem (known as PGALs, for short) are utilized in Utah’s courts in child custody disputes is simply wrongheaded and contrary to the fundamental principles of fact finding, due process of law, and justice itself.

Given that children have the greatest stake in the custody and parent-time awards, I cannot see how any competent jurist could justify barring a sufficiently (sufficiently, not excessively) competent, intelligent, mature, and credible minor child witness (especially, but not exclusively, a child who wants to testify) from testifying on those subjects.

PGALs are not appointed for the purpose of ensuring a child never testifies on/for the record in his/her own words, yet that is what many GALs/PGALs believe (and they act accordingly). I’ve encountered PGALs and judges who object to children who want to testify–not because the children are incompetent or incredible or in serious danger if they testify, but “as a matter of general principle” (whatever that means).

PGALs are not witnesses (expert or otherwise). PGALs cannot testify, but most PGALs I know believe they can testify, nonetheless. Most PGALs I know believe that they are an exception to the hearsay rule. Most PGALs I know believe that one of the purposes of their appointment is ensuring a child’s own, unfiltered, un-summarized, direct, on the record testimony is never heard. This is wrong. PGALs claim that one of their roles is to prevent the child from getting involved in the case. This is wrong too.

Every witness (child or otherwise) is inherently involved to some degree or another in the case in which the witness testifies. Most witnesses (even party witnesses) are reluctant witnesses. It has been my experience that, as a lazy, disingenuous way to prevent any child of any age from testifying for the record, those who oppose child testimony define “harm’s a child” as synonymous with “child is reluctant” or “child might be reluctant” or “the child’s testimony could upset a parent and the parent might retaliate against the child” or “simply having to contemplate the subjects raised in the course of testifying is asking too much of any child.” These lazy, disingenuous people equate any and all testifying from the mouth of the child on the record with inherently causing the child harm.

I could easily identify a dozen Utah attorneys who, with a straight face, will unqualifiedly agree with the statement, “Any child who testifies directly on the record on the subject of the custody or parent-time awards that will apply to him/her is unduly harmed by his/her testifying.” It’s a fatuously overbroad contention and they know (or should know) it, but it’s not about coming up with sincere, good-faith opposition to child testimony, it’s about contriving what is labeled an excuse (plausible or otherwise) to prevent child testimony.

Another “reason” for banning on/for the record child testimony that a child’s preferences and desires do not control the custody and parent-time awards. That’s embarrassingly disingenuous. I am aware of no one ever arguing, “Once the child has testified for the record, the court is inexorably bound to award custody and parent-time as the child wants,” yet I have seen many memoranda that argue against child testimony on the “grounds” that a child should not testify because “the [child’s] expressed desires [regarding future custody or parent-time schedules] are not controlling.” (see Utah Code Section 30-3-10(5)(b)(i)).

It is not my purpose, in seeking the testimony of children on subjects relevant to the custody and parent-time awards, to harm those children. By the same token, unless child testimony is honestly found to be unduly harmful to a child, then a child should not be prevented from testifying simply because someone can think of any kind of harm–no matter how slight–that testifying might cause the child.

Utah Family Law, LC | | 801-466-9277

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Utah Divorce and Your Financial Declaration: Why it Matters, and How to Prepare It the Right Way

In every Utah divorce case, the parties must prepare what is known as a financial declaration. The parties to a divorce action are required by the rules of court to provide each other with their financial declarations.

With rare exception, divorce litigants struggle with preparing a complete, accurate, truthful financial declaration. We prepared this video (and an accompanying blog post) to help you 1) overcome procrastination, 2) understand the purpose of each part of your financial declaration, and 3) persuade you, we hope, not to give in to the temptation to lie on your financial declaration or try to hide anything from disclosure on your financial declaration.

  1. What is your financial declaration?

Concisely stated, your financial declaration is a document that provides information about income, assets, debts, and personal expenses.

The information in the financial declaration is used to analyze and determine questions of child support, alimony, division of marital property, and assigning responsibility for marital debts and obligations. as well as for determining an attorney’s fee or “for any other reason” (Utah Rules of Civil Procedure Rule 26.1(e)).

The specifics of what needs to be included in your financial declaration are outlined in URCP Rule 26.1. The acronym URCP means “Utah Rules of Civil Procedure,” and URCP 26.1 requires that you provide specific supporting documents with your financial declaration:

  • Your previous two years’ personal and business tax returns, including all the documents submitted with your tax returns and all documents used to prepare those tax returns
  • Pay stubs for the last 12 months before the petition for divorce was filed with the court.
  • Documents that verify the value of all real estate that the parties have an interest in (for example, your most recent appraisal, tax valuation, and refinance documents)
  • Bank statements for all financial accounts for the 3 months before the divorce was filed (this includes checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held jointly, in your name, or as a trustee or guardian, or on someone’s behalf).

We also suggest that you provide documentation of your personal expenses going as far back as you can. If you don’t have this documentation, start compiling it.

  1. Is there a way to be exempt from preparing and producing a financial declaration?

No. We will not discuss this topic again. You must prepare a financial declaration, and you must prepare it within the time limits you are given to prepare it. You must give your spouse a copy of it. There is no way around it. If you refuse to provide a financial declaration, the court can and almost surely will sanction you severely. Here is what Rule 26.1 provides on that subject:

(f) Sanctions. Failure to fully disclose all assets and income in the Financial Declaration and attachments may subject the non-disclosing party to sanctions under Rule 37 including an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.

(g) Failure to comply. Failure of a party to comply with this rule does not preclude any other party from obtaining a default judgment, proceeding with the case, or seeking other relief from the court.

  1. Do I have to give the court a copy of my financial declaration? Why?

You may be required to file a copy of your financial declaration with the court if 1) a hearing is scheduled on the subject of child support, spousal support, division of property, allocation of responsibility for debts, attorney fees awards and court costs, or 2) the court has ordered you to file it.

  1. Do I have to give my spouse a copy of my financial declaration? Why?

Yes, you do need to give your spouse a copy of your financial declaration. It is required by court rules. Rule 26.1(c), to be exact.

But the better question is why wouldn’t you give your spouse a copy of your financial declaration? Exchanging financial declarations with your spouse is a way of keeping both parties honest about income, assets, debts and obligations, and personal expenses.

There is an element of wounded pride and embarrassment associated with close examination of the details of a person’s finances. Being honest and pushing your pride aside is hard but is still better than misrepresenting or hiding your financial state.

  1. What will happen if I do not prepare and provide my spouse (and the court, when necessary or when ordered to do so) a financial declaration?

See paragraph 2 above.

And your attorney will likely withdraw as your counsel.

    1. You could be sanctioned for contempt of court. This can lead to fines, penalties, or even jail time.
    2. You could lose your rights and entitlements you would otherwise deserve when it comes to division of marital property, responsibility for marital debts and obligations, and the spousal support and child support awards.

6. Isn’t a financial declaration just busy work?

I hope that by now you can see that a financial declaration is plainly not busy work.

A clear, accurate, and complete financial declaration is one of the best ways to establish your honesty, character, and credibility overall.

A clear, accurate, and complete financial declaration is necessary to help you understand the reality of your financial situation now and what it will likely be post-divorce.

We get it. Taking a hard, honest look at your financials is scary and discouraging. But burying your head in the sand does you no good. Face up to it and get it done.

  1. I do not see the point of a financial declaration (you are lying; of course you see the point of a financial declaration).
  2. “Hey,” you may think, “I have a smart and original idea: I will lie on my financial declaration.” This is neither original nor smart.
    1. You are not the first and will not be the last person to believe that they can lie to your attorney, to the court and to your spouse and to your spouse’s attorney. People have been lying to the courts from the beginning. Sometimes it works. The odds, however, are against you.
    2. The moral thing to do is to tell the truth.
    3. If doing the right thing is not reason enough to be honest and forthright, then remember you are not as good a liar as you think, and you will be caught in your lies.
    4. Do you really believe that you are smarter than the opposing counsel, your attorney, and the court individually or combined? You can fool some of the people all of the time, all of the people some of the time, but you can’t fool all of the people all of the time.
    5. Lying can get you some big benefits if you get away with it. However, if you are caught lying, you will lose. The court can hold you in contempt, and even strike your pleadings outright and award default judgment to your spouse. If your main worry is your money, then you should disclose it. Getting caught in a lie or worse, lying under oath is usually more costly than being honest and forthcoming.
    6. Courts have seen liars lying on financial declarations forever. There is nothing new under the sun.
    7. Unless your lawyer is a crook, if you insist on lying on your financial declaration, your lawyer will be required to drop you as a client.

OK, so you’re now convinced there is no escaping the preparation of your complete and accurate financial declaration. How do I prepare my best financial declaration? Great question. Let’s start answering it by first addressing the wrong way to prepare a financial declaration.

  1. The wrong way to prepare your financial declaration
    • Guessing or estimating without 1) making it clear on your financial declaration form that you were making an estimate, and 2) making the most accurate guess/estimate you can and explaining the bases for your estimate.

Your spouse isn’t likely to cut you some slack if you guess or estimate incorrectly. No, instead your spouse will accuse you of lying. Don’t make wild guesses. Don’t make estimates without making it clear that your estimate is an estimate, not an unquestionable fact.

Sloppy guessing and estimating makes you look dishonest and/or ignorant. Courts don’t listen to liars and fools or take them seriously.

  1. Falsely claiming that you “don’t remember” and that you cannot find documents.

This is lying, and it doesn’t fool anyone. Anyone may honestly forget or misremember a few details. Sometimes documents get lost. It’s only human. But conveniently claiming “I don’t recall” and “I can’t find it” in response to crucial questions? Come on. You cannot even lie persuasively to yourself like that.

Claiming you can’t find documents doesn’t mean your spouse or your spouse’s lawyer can’t find them through other means.

  1. The right way to prepare your financial declaration.
    • The right way to fill out a financial declaration is to be as honest and thorough as possible to provide as complete and accurate a financial declaration as possible. Yes, it may hurt or embarrass you to be so honest about your financial situation, but it hurts worse to lie and be sloppy.
    • Do the necessary work. You can’t skip steps and take shortcuts and turn out a complete and accurate financial declaration. If you think you are an exception, you’re lying to yourself.
    • Don’t procrastinate. You cannot prepare a good financial declaration by waiting until the last minute. Procrastination does more damage to your ability to prepare a good financial declaration than any other bad habit. Procrastination needlessly and inexcusably makes it sadly and much harder to prepare your financial declaration.
    • Conquer procrastination. Conquer it by:
      • 1) committing to complete 3 pages per day, Monday, Tuesday, Wednesday, Thursday, and Friday. There are about 14 pages in a financial declaration form. Your attorney can prepare the first 2 pages for you. That leaves 11-12 pages you need to fill out yourself. If you complete 3 pages per day (and leave yourself an extra day or two to compensate for interruptions or snags you encounter along the way), you’ll have it done—and done well—in 5 days.

2) compiling your supporting documents. Start now. Make sure you contact your banks, credit unions, and other financial institutions, HR and/or payroll department, retirement benefits administrator, and credit card companies to get the documents you need to attach to your financial declaration:

  • Tax returns for the last two years
  • Pay stubs or other proof of income for the 12 months before the petition was filed
  • Loan applications for the 12 months before the petition was filed
  • Real estate documents. Deed, most recent appraisal, tax valuation, and refinance documents (if any).
  • Financial statements for the 3 months before the petition was filed. This includes, but is not limited to:
    • checking
    • savings
    • credit cards
    • money transfer apps
    • money market funds
    • certificates of deposit
    • brokerage
    • investment
    • retirement

It can take several days for the documents to be emailed or mailed to you, so contact the sources and request them now. Don’t be afraid to follow up if you haven’t received them by the time the sources estimate or promise you’ll have them.

  1. Garbage in, garbage out. If you wait until the last minute to prepare your financial declaration, odds are your financial declaration will be mediocre, and a mediocre financial declaration is dangerous. Frankly, if you prepare a half-baked financial declaration, you deserve the natural consequences of poor preparation.

iii. Work in and for your best interest.

  1. Do the work. Do it consistently. Do it on time. There is no other way to do it right.
  2. You cannot foist the preparation of a solid financial declaration on your attorney and his assistants. Really, you can’t. Don’t try. It won’t work. It cannot work.
  3. Your attorney and his assistants cannot do it for you. It is impossible. There is information and there are supporting documents only you can provide.
  4. Your attorney and his assistants do not know more about your financial situation than you do.

iii. Your attorney is there to help you get your financial declaration in ship shape, but you have to do the work and supply information and documents that only you can provide before your attorney can be of any help to you.

  1. There is no loophole. There is no magic wand. You will have to do the work and do it consistently in order to put your best foot forward. Time wasted or squandered cannot be recovered.
  2. Explaining each part of the financial declaration and what the court and the opposing party use it for:
  3. Paragraph 1. Statement of whether you are filing a copy of your financial declaration with the court. This paragraph is fairly self-explanatory. Unless there is a hearing on the subject of alimony, child support, or attorney’s fees awards scheduled, or unless the court has ordered you to file your financial declaration with the court, you don’t file your financial declaration with the court.
  4. Paragraph 2. The documents supporting your financial declaration. Your tax returns, pay stubs, loan applications, real estate documents, and financial statements verify the information you provide in the other paragraphs in your financial declaration.
  5. Paragraph 3. Employment. You identify whether you are employed, and if you are, who your employer or employers are, how you are compensated, how often you are paid, and how much you are paid.
  6. Paragraph 4. Gross Monthly Income. You identify all sources of your pre-tax income, whether earned or unearned, and how much you receive on a monthly basis from each income source. If you don’t receive income on a monthly basis, then you identify what the average annualized monthly amount is.
  7. Paragraph 5. Monthly tax deductions. You identify what taxes are deducted from your gross monthly income and how much is deducted.
  8. Paragraph 6. After Tax Income. This paragraph is fairly self-explanatory. In this paragraph you state what your net income is after you deduct the taxes withheld from your gross monthly income.
  9. Paragraph 7. Monthly Expenses. This paragraph is fairly self-explanatory. Here you identify what your monthly personal expenses are. If you have separated and your expenses have changed since separation, then you identify the differences between your “Current” monthly personal expenses and what your previous “Marital” monthly personal expenses are.

You don’t simply state your personal expenses in paragraph 7. You need to be able to verify and justify them too. To do that, you need to provide receipts documenting these expenses as real.

Providing receipts establishes your credibility. They demonstrate that you are transparent and honest about your financial situation. Providing receipts establishes accuracy. They ensure that you do not overstate or understate your financial obligations and they prevent the court from dismissing your personal expense claims as false or inflated. Providing receipts provide context and explanations for specific expenditures.

  1. Paragraph 8. Business Interests. A business could be a marital asset that has value to be divided in divorce. Or it could be separate property. This is why you provide the information about your business interests, who owns the business interests, and the value of business assets.
  2. Paragraph 9. Financial Assets. This is where you identify where your money is kept, as well as information on other financial assets such as stocks and bonds, insurance policies, and retirement accounts.
  3. Paragraph 10. Real Estate. This is where you identify your interests in real estate, such as the marital home, vacation property, rental properties, or other interests in real estate.
  4. Paragraph 11. Personal Property. In this paragraph you identify the personal property that you own, whether you acquired it before marriage or during the marriage. Must you list every shirt and sock you own, every knife, fork, and spoon? No. A fair rule of thumb for what to list in paragraph 11 is that anything valued around $500 or more goes on the list. You can identify things worth less if you want or if you feel it is important, of course.
  5. Paragraph 12. Debts Owed. In this paragraph you identify both your separate and marital debts and obligations. The type of debt, the account number (if applicable), who the debtors are, the balance owed on the debt, and what the minimum monthly payment is (if applicable).
  6. Supporting documents for your financial declaration must be in PDF format.

The court will not accept documents in any form other than PDF, so all supporting documents must be in PDF form. Here are ways to scan and save documents as PDFs:

  1. Scanner with built-in PDF-creation functionality. Most scanners come with built-in PDF-creation functionality, so you can scan a document and automatically save it in PDF format.
  2. All-in-one multifunction machines: All-in-one machines often have scanning capabilities that allow you to scan documents to PDF files.
  3. Smartphone Apps: There are several smartphone apps that enable you to convert a photograph of a document into PDF format. This is, however, the worst option of all the others. Scanning from a smartphone is time consuming, results in the lowest quality images, and makes it hard to scan multi-page documents. Use your own scanner or have someone else scan your documents into PDF format. You and your lawyer will be glad you did.

Once you gather your supporting documents together, save complete and legible copies of them in PDF format and then email them to your attorney to serve or file them with your financial declaration.

Thank you for watching. Thank you for reading. You’re better for having done so. Because you are now better educated and better prepared to complete your financial declaration fully, accurately, and on time. We hope that watching this video and reading the associated blog post has not only impressed upon you the importance of your financial declaration but has demystified what your financial declaration is and the purposes it serves. We hope you are better prepared and more confident going forward.

Utah Family Law, LC | | 801-466-9277

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Establishing the existence or absence of business/commercial goodwill value in a divorce.

Sometimes a business is a marital asset.

When the value of a business that is a marital asset is divided in divorce, the question of the “goodwill value” of the business will usually arise.

Goodwill is defined by Black’s Law Dictionary as “a business’s reputation, patronage, and other intangible assets that are considered when appraising the business, esp. for purchase; the ability to earn income in excess of the income that would be expected from the business viewed as a mere collection of assets.” (Black’s Law Dictionary (11th ed. 2019))

The Utah appellate case of Marroquin v. Marroquin defined institutional or enterprise goodwill as “based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers, and may include factors such as a business location, its name recognition and its business reputation” (¶15, 440 P.3d 757 (Utah App. 2019)). In contrast, “Personal goodwill is based on an individual’s “reputation for competency” and is not subject to distribution upon divorce.” (Id.) This is why, in Marroquin v. Marroquin, where the court determined the only goodwill associated with the husband’s business was that of personal goodwill, the value of such goodwill was not subject to distribution upon divorce of the parties. Consequently, requiring the husband to pay the spouse part of the value ascribed to the personal goodwill would have been inequitable.

In the Utah appellate case of Stonehocker v. Stonehocker (2008 UT App 11, 176 P.3d 476 (Utah Ct. App. 2008)), the value of the husband’s business would be determined independent of any goodwill component where the business was the product of the husband’s reputation, goodwill, and sole efforts, and there could be no good will in a business that was dependent for its existence upon the husband who conducted the enterprise and would vanish were the husband to die, retire or quit work (Id. at ¶ 44).

Most small businesses do not have business or commercial goodwill, but that does not stop many spouses from claiming that business/commercial goodwill exists, that it exists in prodigious quantities, and that the spouse making the claims is entitled to a big ‘ole cash award equal to half of the alleged business/commercial goodwill.

Utah Family Law, LC | | 801-466-9277

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John v. John – 2023 UT App 103

John v. John – 2023 UT App 103








No. 20210506-CA

Filed September 14, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

Commission Joanna Sagers

No. 164904953

Benjamin K. Lusty, Attorney for Appellant Mary Deiss Brown, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which


LUTHY, Judge:

¶1        In Lucas Allen and Cassandra Kathleen John’s divorce decree, the district court gave Lucas[1] sole legal and physical custody of the parties’ daughter, Child. The decree gave Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the reunification therapist.” The court ordered that Cassandra’s virtual parent-time “not be . . . monitored” but that her in-person parent-time be “subject to line-of-sight supervision.” The court then outlined a “reunification” plan, with the goal of Cassandra’s eventual transition to unsupervised parent-time with Child.

¶2        Cassandra contends that the district court erred by ordering supervised in-person parent-time without making the statutorily required finding of “evidence that [Child] would be subject to physical or emotional harm or child abuse . . . from [Cassandra] if left unsupervised with [her].” Utah Code § 30-3-34.5(1).[2] Cassandra also forwards multiple arguments in support of the assertion that the court erred by failing to provide, as required by statute, “specific goals and expectations” for her to meet “before unsupervised parent-time may be granted.” Id. § 30-3-34.5(5). We conclude that the district court made an adequate finding of evidence that Child would be subject to physical or emotional harm from Cassandra if left unsupervised with her, and we conclude that each of Cassandra’s arguments regarding specific goals and expectations is either mistaken or unpreserved. We therefore affirm.


¶3        Lucas and Cassandra married in March 2014. Child was born in September of that year. Cassandra had “engaged in drug use over the years,” and “even though [Cassandra] was a stay-at-home mom,” Lucas “hired a baby-sitter to take care of [Child] . . . because of [Cassandra’s] drug use” and because “he feared for [Child’s] safety.”

¶4        Soon after Child was born, Cassandra became pregnant with the parties’ second child. When the second child was born, the baby “had substances in her system,” “indicat[ing] that [Cassandra had been] engaging in activities that were potentially harmful to the . . . child.” This child died shortly after her birth.[3]

¶5        The parties separated around May 2016, and Cassandra moved in with her boyfriend later that year. In August 2016, Lucas petitioned for divorce. The next month, he moved for temporary orders to grant him sole legal and physical custody of Child. He also requested that Cassandra’s visitation time with Child be supervised and that Cassandra be ordered to submit to drug testing.

¶6        Around this time, Lucas and Cassandra were together “at a local restaurant” when Cassandra “took [Child], put her in the front seat of [a] truck without any car seat or any appropriate child restraints and then drove off,” hitting Lucas with the truck in the process. A temporary protective order was entered against Cassandra because she had attempted to run Lucas over with her truck and abscond with Child. A hearing on the protective order was held in October 2016, at which the commissioner recommended dismissal of the protective order,[4] entry of a mutual restraining order, and the granting to Cassandra of “unsupervised parent time . . . with no overnights.”

¶7        On December 8, 2016, a hearing was held on Lucas’s Motion for Temporary Orders. Following the hearing, the court entered mutual restraining and no-contact orders against the parties, awarded Lucas temporary sole legal and physical custody of Child, and directed Cassandra to “submit to a hair follicle [drug] test before 5:00 p.m.” that day. The court gave Cassandra parent-time “with . . . no overnights” and provisionally ordered that it be “facilitated” by a particular family friend. The court further instructed that if Cassandra’s drug test came back positive, Lucas’s attorney was to “call the court to schedule a telephone conference to determine the status moving forward.”

¶8        Cassandra’s hair follicle drug test came back positive for both cocaine and marijuana, and another hearing was held on December 20, 2016. Following that hearing, the court ordered that Cassandra’s parent-time be subject to line-of-sight supervision and that Cassandra complete another drug test by January 9, 2017.

¶9        On January 9, 2017, Cassandra submitted an “unofficial” drug test showing negative results for a collection taken that day. At a review hearing on January 30, 2017, however, the commissioner was “concern[ed]” because the results of the January 9 unofficial test were “drastically different” than the results of the test on December 8, 2016. The commissioner therefore directed Cassandra to complete another drug test that day. The commissioner also ordered “continue[d] . . . supervised parent time, status quo,” and set a review hearing for February 13, 2017.

¶10 Cassandra’s drug test on January 30, 2017, came back positive for marijuana, and following the February 13 review hearing, the court ordered “expanded supervised parent-time” with “no overnight visits.” It also ordered Cassandra to submit to a urinalysis by March 8, 2017, and it set another review hearing for March 13, 2017.

¶11 Cassandra took the required test before the March 13 review hearing, but she failed to submit the results. Her counsel (Counsel) nevertheless proffered at the hearing that the test had come back “positive for THC.” The court ordered that Cassandra’s parent-time remain subject to “direct line-of-sight” supervision “with no overnight visits.”

¶12 “At some point”—likely during April 2017—Cassandra “moved to Idaho for several months.” After a “stint in Louisiana,” she then moved to Iowa and lived there with a boyfriend. Once she had left Utah, Cassandra did not request any review hearings or make any attempt to exercise in-person parent-time with Child. As a result, she was “around [Child] physically on [only] three occasions” between January 2017 and June 2021.

¶13      Eventually, in March 2021, after compromise negotiations proved only minimally successful, the court held a bench trial on the parties’ outstanding issues. At the time of trial, Child was six years old.

¶14      Following trial, the court held a hearing to orally announce its rulings. To Cassandra’s credit, the court found that she was “trying to make some changes in her life,” including engaging in “therapy to resolve anger, trauma, and substance abuse” issues, and that she “appear[ed] to be improving.” But the court found that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” “consider[ed] her own needs first and primary over [Child]’s,” and might not be “completely emotionally stable.” The court also found that Cassandra had engaged in “instances of violence” in the past (including the one that led to the temporary protective order noted above). And it found that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were due to her “history with drug abuse.” Based on the foregoing findings, the court awarded Lucas sole legal and physical custody of Child.

¶15 The court then granted Cassandra supervised in-person parent-time at a frequency to be determined by a therapist and unsupervised virtual parent-time at least once per week. The court said that it thought there ought to be “some sort of ramping up” of supervised in-person visits and that a therapist should “come up with a schedule” for those visits after talking with Child, Cassandra, and Lucas to “see what’s appropriate.” The court further explained, “I expect that the therapist will come up with so many overnights so that [Cassandra] can practice with all of those things, and then once she’s completed the therapist’s plan, then I would say that the standard relocation statute would then become effective.” Counsel then asked whether “at that point”—i.e., when Cassandra had completed the therapist’s plan—“supervision would no longer be required.” The court responded, “I don’t know, Counsel,” “because there’s . . . some ongoing drug issues . . . and we don’t have any evidence . . . that she would have clean tests.”

¶16      Counsel then asked if the court was going to make findings as to whether Child “would be in danger if she were with [Cassandra unsupervised].” In response, the court said:

[G]iven that [Cassandra]’s not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger; but given also that she hasn’t been around [Child] physically except for three times, I just think that’s problematic.[5]

¶17      Counsel then said, “So . . . [a]fter two things occur, if I understand correctly, then [Cassandra]’s parent time will be according to [section] 30-3-37 and unsupervised.” He listed “one, the completion of the ramp up period as recommended by the therapist; and two, . . . submitting to the Court a clean drug test.” He asked, “Is that accurate?” The court responded that it could not “say that [Cassandra]’s going to go immediately to unsupervised [visitation] after the ramp up” because the court might “need some more information at that point.”

¶18 Counsel then informed the court, “My understanding, your Honor, is that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court replied, “I . . . don’t know what the therapist is going to say, Counsel. So I think it’s a little bit speculative. . . . What I’m going to have to see is what the therapist recommends, and then I can give you some further instructions at that point.” It added, “But yes, we do need her to have clean drug tests . . . .” Then the court, Counsel, and Lucas’s attorney discussed what the drug test requirements would be.

¶19      Counsel later asked, “Your Honor, what would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The court asked Lucas’s attorney if she “want[ed] to respond,” saying, “[Counsel] wants criteria on how to remove supervision.” Lucas’s attorney explained that she did not think there was “enough information . . . to anticipate . . . the factors that [the court was] going to have to consider” and that it seemed reasonable to “notice up a hearing after [the parties got] a lot of these things going[] and have enough information to go ahead.” But the court indicated that it was “not going to notice up a hearing at [that] point.” It directed the parties to “get the therapist on board first, and . . . to do that within three weeks,” then to get “the drug test filed.” The court said, “[A]fter I’ve reviewed these things[,] . . . I’d like to make sure that Cassandra is complying with everything, and that she’s able to do what she needs to do.” It further stated, “So I would like to do that as quickly as possible, [Counsel], but I don’t know how long of a period it’s going to take because it will also depend on whether or not your client is able to do everything that’s required. I hope that she does.”

¶20      Counsel then, again, stated his interpretation of the process the court was explaining:

[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the criteria for . . . when supervision will be lifted until [Cassandra] has complied with everything the therapist has said and filed clean drug tests. Then we can come back to have a hearing to determine what the criteria are for supervision to be lifted; is that accurate?

¶21 At that point, the court turned to Lucas’s attorney and asked whether she “[had] any objection” to the process Counsel had just summarized or whether she thought that supervision “should be lifted” as soon as Cassandra “completes the criteria” the court had already identified. She said that she thought “there might be concerns” even after Cassandra completes reunification therapy, although she did not “know what they would be.” The court then said, “Let’s just get through the therapy portion, and then I want to see what the reports are. . . . It could be likely that if she’s successful with all of th[e] things [the therapist recommends] that the Court will lift supervision at that time.”

¶22      Counsel once again spoke, seeking “to clarify” certain matters by asking, “[I]f after [Cassandra] has met with the therapist and complied with the therapist, the therapist recommends that supervision be lifted, . . . then would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” The court replied that it “[did not] know the answer to that yet,” saying, “[B]ut let’s go through that, and if the therapist recommends it, if we need to have a discussion with the therapist present, then we might need to do that, okay? Because I might . . . have some questions.”

¶23      Counsel then asked the court to order that the therapist be an Association for Family and Conciliation Courts therapist, and the court agreed. Then the court said, “If there’s no other questions, I do need to get to my next hearing.” Counsel initially replied that he had “[n]o other questions” but then said, “Last question, your Honor. . . . [I]s the review hearing going to be . . . before you or the Commissioner?” The court answered that the review hearing would be before the court.

¶24      The court concluded the hearing and memorialized its oral rulings into written Findings of Fact and Conclusions of Law and a Decree of Divorce. Cassandra appeals.


¶25      On appeal, Cassandra contends that the district court erred in two ways when it ordered supervised parent-time. First, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(1) because the court “did not find that Cassandra poses a present threat of harm” to Child. Second, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(5) because the court did not “provide specific goals and expectations for Cassandra to meet” in order to be granted unsupervised parent-time. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).


  1. Adequacy of the District Court’s Findings in Support of
    Supervised Parent-Time

¶26      Cassandra argues that the district court erred in ordering supervised parent-time because it did not make the finding that the Utah Code mandates as a prerequisite to supervised parent-time. The pertinent portion of the relevant provision reads as follows:

When necessary to protect a child and no less restrictive means is reasonably available . . . , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5­114, from the noncustodial parent if left unsupervised with the noncustodial parent.

Utah Code § 30-3-34.5(1).

¶27 As an initial matter, we agree with Cassandra’s assertion that this statute means that the court must find a current risk of harm to the child from unsupervised parent-time, “rather than merely [a] past or historic risk of harm.” (Emphasis added.) To require “evidence that the child would be subject to . . . harm or . . . abuse . . . if left unsupervised with the noncustodial parent,” id. (emphasis added), is to require evidence of harm or abuse during a potential situation that would occur, if at all, in the future.[6] Thus, before ordering supervised parent-time, a court must find that there is evidence that harm or abuse could occur in the future, not merely that harm or abuse, or a risk of harm or abuse, occurred or was present in the past.

¶28      That is not to say that the existence of harm, or a risk of harm, from a noncustodial parent in the past has no bearing on whether there is a risk of harm from that parent in the future. Evidence that harmful or potentially harmful circumstances from the past have recurred or have not substantially abated could certainly be probative of whether there is a risk of harm in the future.

¶29      Moreover, a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to . . . harm or . . . abuse” if left alone with the noncustodial parent. Id. (emphasis added). For this reason, we, like Cassandra, conclude that a finding of a presently existing threat or risk of harm or abuse is sufficient to support supervised parent-time under section 30-3-34.5(1).

¶30      However, we disagree with Cassandra that “the district court did not find that [she] presently poses a threat of harm to [Child] if she were [to be left] unsupervised with [Child].”

¶31      Cassandra’s argument here is a challenge to the adequacy of the district court’s findings, not to the sufficiency of the evidence.[7] When we assess the adequacy of findings, “we review the [trial court’s] written and oral findings of fact together to determine if they are [adequate] to support the trial court’s rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may be stated in writing or orally following the close of the evidence.”). This is particularly true when “the written findings are incomplete, inadequate, or ambiguous.” Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1121 (Utah 1984). In those instances, the written findings “may be elaborated [on] or interpreted (in respects not inconsistent therewith) by reference to the trial court’s . . . oral explanation of the decision.” Id. This is one of those instances.

¶32      Cassandra supports her argument that the court failed to make the requisite finding by pointing to only one statement from the district court’s written findings: “[I]t is not clear whether [Cassandra] is still a danger to [Child].” But the court orally supplied additional findings and reasoning. When asked if it was going to make findings as to whether “[Child] would be in danger if she were with [Cassandra],” the court replied, “[G]iven that [Cassandra has] not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger . . . .” (Emphasis added.) The court then added that it also found it “problematic” that Cassandra “[had]n’t been around [Child] physically except for three times” during the preceding four-plus years. Because Counsel, in posing the question, employed the phrase “[Child] would be in danger if she were with [Cassandra]” to summarize the requirement of a current threat of harm or abuse, we take the court’s responsive statement that Cassandra “potentially could still be a danger” to Child to be a finding of a current threat of physical or emotional harm to Child if Child were to be left unsupervised with Cassandra.[8]

¶3        Our reading of the court’s answer to Counsel’s question is bolstered by the fact that it came on the heels of additional findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own needs first and primary over [Child]’s,” that Cassandra still might not be “completely emotionally stable,” and that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were linked to her “history with drug abuse.” When the court’s response to Counsel’s question is viewed in the context of these and other findings, its import is unmistakable: Cassandra has a history of drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted, Cassandra has failed to provide a negative drug test; six-year-old Child has been in Cassandra’s physical presence only three times over the course of four-plus years; and Cassandra remains immature, potentially emotionally unstable, and self-centered in relation to Child; accordingly, Cassandra “potentially could still be a danger” to Child in the present. This finding is adequate to support the court’s order of supervised parent-time.[9]

  1. The District Court’s Provision of Specific Goals and Expectations to Discontinue Supervised Parent-Time

¶34 When a court orders supervised parent-time, it must “provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on appeal states at least two, and perhaps three, independent arguments to support her assertion that the district court did not comply with section 30-3-34.5(5). We disagree with her first argument, and we conclude that her second possible argument and her third argument are unpreserved.

¶35      Cassandra’s first argument regarding the district court’s compliance with section 30-3-34.5(5) is that the court’s orders “are silent on the question of what conditions Cassandra must meet prior to [the] lifting of supervised parent time” and that, because of this purported silence, “the district court erred.” Cassandra is mistaken, however.

¶36      After Counsel informed the court of his understanding that the court “need[ed] to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed,” the court said that it “need[ed] her to have clean drug tests” and also directed the parties to “get [a] therapist on board . . . within three weeks.” Moreover, Cassandra acknowledges that the court ordered her to complete reunification therapy. The court repeated these requirements multiple times. Plainly, the court provided three specific goals or expectations for Cassandra to meet before unsupervised parent-time would be granted: (1) Cassandra needed to provide clean drug tests in connection with her supervised visitation; (2) Cassandra needed to work with Lucas to identify a therapist within three weeks; and (3) Cassandra needed to complete reunification therapy as determined by the therapist. Thus, Cassandra’s first argument fails.

¶37      Next, Cassandra asserts that the district court did not comply with Utah Code section 30-3-34.5(5) because the court did not say that “completion of reunification therapy . . . [was] a condition precedent to lifting supervised parent time.”[10] What Cassandra means by this assertion is not clear. If what she means is that completion of reunification therapy is not a condition the court expected her to meet before supervision would be lifted, this is merely a restatement of Cassandra’s first argument and Cassandra is simply mistaken, as we have explained. On the other hand, if what she means is that to comply with section 30-3-34.5(5), a court must identify at the time it orders supervised parent-time comprehensive list of the things the parent must do to receive a guarantee that supervision will be lifted, she did not preserve this potential issue for our review.

¶38      “In order to preserve an issue for appeal,” the appellant must have “presented [it] to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). “For a trial court to be afforded an opportunity to correct [an asserted] error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority.” Id. (cleaned up). As to the second of these requirements, “an objection must at least be raised to a level of consciousness such that the trial court can consider it.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (cleaned up).

¶39      Here, Counsel indicated to the district court that his “understanding” was “that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court then identified or reiterated three specific criteria for Cassandra to meet, as we have explained. Counsel then repeated, over the course of a lengthy discussion, essentially the same question three times. First, he asked, “[W]hat would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The second time he described “a two-step process” in which the parties “won’t be able to arrive at the criteria for” lifting supervision “until [Cassandra] has complied with everything the therapist has said and filed clean drug tests” and they then “come back to have a hearing to determine what the criteria are for supervision to be lifted.” He asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked a third time whether—“after [Cassandra] has met with the therapist and complied with the therapist”—if “the therapist recommends that supervision be lifted, . . . would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” Each of these questions came after the court had iterated or reiterated specific initial expectations for Cassandra to meet to have supervision lifted. In that context, each of Counsel’s foregoing questions can be fairly understood as an attempt to clarify when or whether additional expectations would be set, not as an objection to the fact that the court had not identified a comprehensive set of expectations at the outset.

¶40      Indeed, after the second of the foregoing questions from Counsel, the court turned to Lucas’s attorney and asked if she objected to the process Counsel had just summarized. This clearly indicates that the court did not understand Counsel’s question to be an objection but rather an attempt at clarification. Thereafter, Counsel emphasized the notion that he was attempting to gain clarity rather than objecting when he explicitly prefaced the third of his questions by stating that he was seeking “to clarify.” Then, after the court reiterated for the third time its initial expectation— for Cassandra to “go through” therapy—it said, “If there’s no other questions, I do need to get to my next hearing.” Cassandra’s counsel responded not by objecting but by saying: “Last question, your Honor. . . . [Ills the review hearing going to be . . . before you or the Commissioner?”

¶41      Given the foregoing, we conclude that even if Counsel was trying to raise an objection to the fact that the district court had not provided a comprehensive set of expectations for Cassandra to meet in order to have supervision of her parent-time lifted, he did not raise that objection to a level of consciousness in the mind of the court such that the court could consider it. Accordingly, this potential issue was not preserved for our review. See Cruz, 2005 UT 45, ¶ 33; State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (“A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.” (cleaned up)).

¶42 Finally, Cassandra argues that the expectation that she complete reunification therapy as determined by a therapist before she is allowed unsupervised parent-time violates section 30-3-34.5(5) because that section “does not allow the district court to delegate the [setting of conditions for the lifting of supervision] to a therapist.” Again, she did not raise this issue below. Because it is unpreserved, we do not address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (stating that “an argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved” (cleaned up)).


¶43 The district court made an adequate finding that Cassandra posed a present risk of harm to Child if Child were to be left unsupervised with her. Additionally, Cassandra’s first argument in support of a conclusion that the district court failed to comply with Utah Code section 30-3-34.5(5) by not providing specific goals and expectations for Cassandra to meet before being granted unsupervised parent-time is mistaken, and her other arguments in support of that conclusion were unpreserved. We therefore affirm.

Utah Family Law, LC | | 801-466-9277

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If I Get Married and Divorce Laws Change, Then Can I End the Marriage Before a New Divorce Law Applies Mentioning the Same as the Reason for Divorce?

My answer to your question is going to be a generalized answer to a hypothetical question. Before you take any real-life legal action in relation to real, existing laws, you will need to ensure you understand now the real, existing laws are construed and applied. And you would likely benefit from consulting with an attorney in your jurisdiction who is familiar with the law there. With that stated:

If I understand your question correctly, you are asking a question involving this scenario:

  1. A divorce law currently exists.
  1. The law may change or you know it is going to change.
  1. Under the current law, you could benefit from its provisions.
  1. You want to take advantage of the benefits that the current law provides before those benefits disappear after the change to the law goes into effect.

So, your question is, can you file for divorce now to take advantage of the benefits of an existing law before the law changes? You certainly could. It is not uncommon for people to take action under the provisions of laws that are about to change, so that they can take advantage of the provisions in the old law that will no longer exist after the changes go into effect. This happens with tax law frequently.

If you filed for divorce under an old law’s provisions to obtain the benefits the old law bestows and if your decree of divorce was granted before the law changed, it is likely that the new laws would not apply to your case. You would, however, still want to ensure that the changes to the law do not operate such that the changes are not retroactive or invalidate any pending divorce actions filed under the old law.

Utah Family Law, LC | | 801-466-9277

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Lawyers and Deadlines. By Braxton Mounteer

You have just received an email from your lawyer about a deadline that your lawyer needs your help to meet. What should you do? You are already extremely busy with your life and its responsibilities. You don’t need or have time for “homework” on top of everything else. You are paying your lawyer a substantial amount of money, why isn’t he or she handling all of this for you? The answer is simple: your lawyer cannot do what only you can do. 

Litigation is deadline driven. The rules of court set deadlines for when certain  exhibits, arguments, requests, claims, and responses must be served on the opposing party and/or filed with the court. Miss the deadline and you risk having those exhibits, arguments, requests, claims, and responses rejected. You could have critical evidence that could help win the day but if you miss the submission deadline, it won’t matter.

You could be subject to certain penalties under the law including contempt of court, awarding of all undisclosed assets to the other party, and being required to provide support beyond your means.

Ignoring deadlines won’t make them go away. Nor will it extend them. Procrastinate until the 11th hour, and you’re all but assured that your and your attorney’s work product will be rushed, incomplete, inferior, and weak.

Sometimes you can request an extension of time, but extensions are not guaranteed. Did you miss this deadline because of forces out of your control or did you just forget? You had better be ready to prove you have a good reason for an extension.

Meeting deadlines is of crucial importance. Your case’s success depends on it.

Deadlines are not “suggestions” and the work due by the deadlines is not busywork you can ignore without risking serious damage to your case or outright doing your case serious damage.

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Why would anyone choose to become a divorce lawyer?

That is a great question.

Most lawyers who have tried being divorce and family lawyers hate it and abandon it for other practice areas.

I can tell you why I chose to be a divorce and family lawyer:

  1. it’s one of the few practice areas where I can provide value for the fees I charge for the work I do. Not every divorce attorney provides value for the money (Lord knows), but for attorneys who are honest, decent people, it’s easier to provide a good value as a divorce attorney than it is in any other practice area I’ve tried. Fighting for your kids is worth it! Divorce and family law practice is very hard work (there are much easier ways to make good money as a lawyer), but I don’t feel like a thief doing the work. If there’s a better way to provide value for the money than as a decent, honest divorce attorney, I’d love to know (I really would) what it is.
  2. I have a talent for divorce and family law practice, and I am wired to handle what drives other attorney’s mad about divorce and family law practice.

Why I don’t like general civil litigation: When people ask me why I chose to be a divorce attorney I tell them the story of how people would come to me with problems like this: “X charged me $20,000 for _________, but _________ is defective, so how much would it cost me to sue X for this?” And I would tell them, “It’ll cost you about $20,000 to sue X, and even if you win AND collect the judgment (which is hardly guaranteed), then all you would do is break even. And collecting the judgment will usually cost you several thousand dollars more in attorney’s fees to find and obtain the money.”

Why I don’t like criminal defense: I found criminal defense work to be too discouraging because A) I don’t like defending guilty people; and B) I don’t like seeing innocent people get railroaded by the system (it happens more than I’d believed possible).

Why I don’t like criminal prosecution: Far, far too often it’s about getting a conviction, not getting to the truth.

Why I don’t like bankruptcy law: See why I don’t like criminal defense work.

Why I don’t like personal injury plaintiff’s work: Personal injury practice is cynically opportunistic and, in my opinion, is largely wealth confiscation masquerading as legal activity. Why I don’t like personal injury defense: It is, in my opinion, too often a game of trying to ensure that deserving people get little to nothing.

Why I don’t like collection work: See why I don’t like personal injury work.

Why I don’t like transactional legal work (things like writing contracts and estate planning documents): I thought that’s what I’d end up doing as a lawyer when I started law school, but when I participated in mock trials (which I did just to see what it was like), I found to my surprise that I liked it, and liked it a lot more than transactional legal work. I find the transactional work too boring to keep me engaged personally. We need good transactional lawyers, but it’s not work I’m best suited for myself.

Utah Family Law, LC | | 801-466-9277

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How Can You Tell if Your Lawyer Is Lying About Winning Cases if There Is No Evidence of It Online or in Paper Form?

Effectively, you can’t.

You might be able to verify whether your lawyer is telling the truth about his/her winning record if the lawyer is willing to give you the information about the case number, the parties, and the opposing lawyer, so that you could—with that information in hand—inquire with the opposing party and the opposing lawyer to see whether they can verify what your lawyer claims is true.

Utah Family Law, LC | | 801-466-9277

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Completeness of Documentation By Braxton Mounteer

One of the hardest documents for a Utah divorce litigant to prepare is the financial declaration. I am amazed at the number of clients who don’t take this document and its preparation seriously.

If you file for divorce or your spouse files for divorce, your divorce case will require you to provide a lot of documentation for various purposes as your life (and the life of your spouse and children, if you have minor children) will come under the magnifying glass. To avoid being fried like an ant, you need to produce complete and completely accurate documentation in preparing your financial declaration.

How is this done? It is a little comical, but it really comes down to accounting as best as you possibly can for every penny that comes in and that goes out. Every meal out. Every oil change. Every gasoline fillup. Every utility bill. Every dollar earned from every source.
Why should you worry about every red cent? Because you will be nickeled and dimed by opposing counsel and even by the court. Opposing counsel quite often (more often than not, frankly) wants to misconstrue confuse your income, expenses, and debts for his/her client’s benefit. The court often assumes that you are lying and/or wants to side with your spouse or against you. They are looking for any reason to call your credibility into question. And if you carelessly prepare your financial declaration, fail to provide an accurate financial declaration, and fail to support your numbers with verifiable documentation, you give opposing counsel and/or the court weapons to use against you.

“Ah,” some of you say, “but I want my financial declaration to be inaccurate so that I appear a lot poorer than I really am!” That way, if I’m the one who might pay alimony, I will pay less. And if I’m the one who might receive alimony, I will get more. Truth be told, it’s possible to lie in your financial declaration and get away with it. Truth be told, it’s harder than most people think. Truth be told, most people who lie (or who don’t lie but instead provide a half-baked, crappy financial declaration) get burned by it. Better to take the hit for being honest than risk an even bigger hit for lying. And do bear in mind that being honest is not a matter of “no good deed goes unpunished”. When you are honest, thorough, complete, and accurate in your work, that builds your overall credibility in your case. The person who owns up to his/her sins and sincerely repents gets due credit more often than not. The court thinks, “He/she was scrupulously honest in his/her financial declaration (even when he/she might could have fudged and escaped detection), so he/she is probably honest about the other things he/she tells me.” That’s more valuable than you know.

Now, if being honest always “won,” nobody would lie. You may experience your spouse lying through his/her teeth and getting away with it. It can and does happen. Still, it doesn’t justify you doing wrong or taking the risk of you being the one who gets caught in a lie or who gets hurt by turning in an incomplete and inaccurate financial declaration.
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Are some cases out there where the counsel has lied to his or her client?

Lawyers’ reputation for lying is, unfortunately, well-founded. There is a Bosnian proverb, “He who will lie for you will lie to you.” Lawyers who lie for their clients (and there are plenty of them) have surely lied to their clients too.

Utah Family Law, LC | | 801-466-9277

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Do family law divorce attorneys of the opposite side stalk and harass their client’s opposition if the client pays for it?

Some do (if you can imagine an attorney doing something like that, it’s probably already been done), but they’re outliers, and they are violating both the law and the rules governing fitness to practice law if and when they do so.

If an attorney is actually (actually) violating the law or violating the rules governing the practice of law, you are not obligated to suffer it. Notify your attorney and bring the misconduct to the attention of the court, the police, and the bar.

That stated, one cannot simply and subjectively brand an attorney of being a stalker or of engaging in harassing behavior and thus establish the attorney as a stalker or harasser. It’s common for sore losers to make false accusations of harassment against an opposing party and his/her attorney. Why? Because it’s a cheap, risk-free way to cast aspersions and demonize and neutralize (if the accusations stick to any degree) the opposing party and/or his/her attorney. Don’t be that guy/gal. If you think you may feel “stalked” and/or “harassed,” before your start accusing, be honest with yourself and ask whether you’re truly being stalked and harassed or just feeling defeated, hurt, angry, anxious, and afraid and wanting to lash out.

Utah Family Law, LC | | 801-466-9277

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What Does a Legal Assistant Think of Going Pro Se? By Braxton Mounteer

The term for representing yourself in court is “pro se” or “pro per”.

Can you navigate the legal system successfully without a lawyer representing you in your case?

Before I became a legal assistant, I thought the answer to that question was, “Well, it won’t be easy, but how hard could it be, if I tried my best?” You’d be forgiven if you think that way too. Many people do. With the exception of a few who are so rare as to make them statistically insignificant, however, going pro se is a recipe for failure.

To win a case, you need admissible evidence and enough admissible evidence. Do you know (really know) whether you have admissible evidence and enough admissible evidence? If not, proceeding pro se puts you at risk of losing.

To win a case, you first need to know whether the law supports your position. Do you know the law? Can you cite the sections of code and what rules of civil procedure and rules of evidence that apply? Do they support your position? If not, proceeding pro se puts you at risk of losing.

To win a case, you need to present your evidence and your legal argument in compliance with the rules of court and in an engaging and persuasive manner. Do you know how to do that? If not, proceeding pro se puts you at risk of losing.

Even if you went up against a brand new, inexperienced lawyer, who would you bet on? Someone with a college education, plus three years of law school (maybe more), or someone who read some blogs and watched some YouTube videos? Now add 5 to 30 years of experience to the lawyer’s side of the ledger. Do you really think you’re on a level playing field?

Would you go into unfamiliar terrain without a guide? The legal profession, the legal system, and court proceedings are all unfamiliar territory, and you can easily get lost and hurt in unfamiliar territory.

And then there’s the problem that is not so intuitive: you’re not in the club. Most judges and lawyers resent people who believe they can do what legal professionals do. Even pro se litigants who have the evidence, the law, and the arguments down can still lose just because the judge and lawyers don’t want you getting uppity.

Pro se is a path that is not for the faint of heart. It will be an uphill battle at best. If you go the pro se route, you will face people who are more knowledgeable, more experienced, and more skilled than you are or can reasonably ever hope to be.

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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 4:

Your attorney cannot do what only you can do. Your attorney cannot answer questions posed to you until you provide your attorney with the information and facts needed to answer the question. Your attorney cannot produce your documents requested in the discovery process without you first producing those documents to your attorney.

Utah Family Law, LC | | 801-466-9277

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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 3:

The documents your attorney tells you that you must prepare for your case are, in fact, documents that you must prepare for your case. Failure to prepare them and to prepare them fully and accurately can and likely will result in severe damage to your case and you.

Utah Family Law, LC | | 801-466-9277

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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 2:

If your attorney calls you, it’s important. Take the call, and if you can’t take the call, then call back ASAP (meaning same day, and not at 4:47 p.m.). Hours can often make the difference between winning and losing. If your lawyer is desperately trying to get in touch with you in the morning and you don’t respond until later that day, or worse, days later, it may be too late. Really. No, really.

Utah Family Law, LC | | 801-466-9277

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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 1:

Please check your email. And if you don’t have an email address, you must get one. And then you need to check your email inbox every day. Not just once a day, but at least twice a day. Twice a day should be sufficient. Oh, and don’t simply read your lawyer’s emails but respond to the questions and requests to you in your lawyer’s email messages. A lot goes on in and during a divorce case. If you don’t respond timely to your lawyer’s requests and questions, your lawyer cannot do his job as well as he otherwise could.

Utah Family Law, LC | | 801-466-9277

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Why Your Lawyer Might Drop Your Case By Braxton Mounteer

So, you have gotten news that your attorney has quit. Your attorney wrote you an email informing you that he or she your counsel either will soon withdraw as your counsel or has filed and served a notice of withdrawal of counsel. What does this mean? How does this work?
Did you not pay your lawyer? Were you not cooperating with your lawyer? Were you disregarding your lawyer’s advice? Actively working against your lawyer? Sabotaging your own case?

Was the case just too much for your lawyer? Did your lawyer get sick or did an emergency arise that requires all of his/her attention? Could your lawyer sense that you were disappointed in your lawyer’s performance and didn’t want to stick around?

Regardless of what the reason was, you no longer have or will soon not have legal counsel. You will need to find another lawyer to represent you.

You may believe that you could do better than your legal counsel. You wouldn’t be the first to think that way. You are likely frightfully mistaken.  Unless you are a genius who can learn in weeks what it take others years to master, you will not get a good enough handle on the legal system in time. Even if you did master the law, that doesn’t mean you can succeed as well as a lawyer could.
The law on the books is not always the law handed down in court. Insiders have, and will always have, an advantage over those who aren’t legal professionals.
And the legal profession is not kind to those who “did not pay their dues” in law school and by taking the bar exam. Pro se litigants (i.e., people who represent themselves in court cases) who are the equals of lawyers in their writing and oral arguments make most lawyers feel inferior and threatened (and that includes the former lawyers who are now judges). When pro se litigants are so “presumptuous” as to think they will be taken as seriously as the lawyers, the system tends to discriminate against the pro se litigants. So even if your lawyer is nothing more than a useful prop, get one.
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