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Category: Justice and Equity

What happens if the respondent does not show up in family court?

Like winning the lottery, it does happen, but not very often. Parties rarely fail to appear for proceedings in family court. But if and when they do, the court can respond in different ways.

Now, if a party does not appear due to circumstances beyond his/her control, the court will almost certainly be lenient with that party.

If, however, a party simply forgets to appear, doesn’t care to appear, or deliberately chooses not to appear, then depending upon what kind of proceeding the party failed to attend, the court could re-schedule the proceeding or, in some cases, enter default judgment against the party who failed to appear (default judgment means, in this situation, that judgment was entered against the party who failed to appear by default–because the party did not appear).

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

https://www.quora.com/What-happens-if-the-respondent-does-not-show-up-in-family-court/answer/Eric-Johnson-311

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House Bill 157 (HB0157 (utah.gov)), “Child Custody Factor Amendments”.

This post discusses another proposed family law bill under consideration for the 2024 Utah legislative session, House Bill 157 (HB0157 (utah.gov)), “Child Custody Factor Amendments”.

This bill, if passed, would provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered:

  • in a Division of Child and Family Services determination regarding removal of a child from parental custody; and
  • when determining child custody as part of a divorce or other family law proceeding.

If passed, H.B. 157 would amend:

Utah Code § 30-3-10

and

Utah Code § 80-2a-202

The new provisions specially are:

(For Utah Code § 30-3-10)

127          (10) In considering the past conduct and demonstrated moral standards of each party
128     under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

*****

144          (b) discriminate against a parent based upon the parent’s agreement or disagreement
145     with a minor child of the couple’s:
146          (i) assertion that the child’s gender identity is different from the sex assigned to the
147     child at birth; or
148          (ii) practice of having or expressing a different gender identity than the sex assigned to
149     the child at birth.

(For Utah Code § 80-2a-202)

167          (b) A peace officer or a child welfare caseworker may not take action under Subsection
168     (2)(a) solely on the basis of:

*****
175          (iii) a parent’s agreement or disagreement with a minor child of the couple’s:
176          (A) assertion that the child’s gender identity is different from the sex assigned to the
177     child at birth; or
178          (B) practice of having or expressing a different gender identity than the sex assigned to
179     the child at birth.

“How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn’t make it a leg.” – Abraham Lincoln

While I realize that the intent of the bill is NOT to give credence to, among other things (all bad) junk science and the extremely dangerous notion that one can legally force others to share and engage in one’s own delusions, the result of enacting such legislation would—ironically—have the opposite effect (e.g., the bill incorporates “sex assigned at birth” when biological sex is not “assigned,” but a law like this would legitimate this inanity). The best way to deal with what will be looked back on as one of the most intellectually bankrupt and embarrassing concepts of the 21st century is to give it precisely all the statutory attention it deserves: none. Parental rights are inalienable and God-given, not a thing the government can erode with trendy, woke (there, I said it) legislation.

Here is the propose text of the bill:

30          30-3-10. Custody of a child — Custody factors.
31          (1) If a married couple having one or more minor children are separated, or the married
32     couple’s marriage is declared void or dissolved, the court shall enter, and has continuing
33     jurisdiction to modify, an order of custody and parent-time.
34          (2) In determining any form of custody and parent-time under Subsection (1), the court
35     shall consider the best interest of the child and may consider among other factors the court
36     finds relevant, the following for each parent:
37          (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
38     abuse, involving the child, the parent, or a household member of the parent;
39          (b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet
40     the developmental needs of the child, including the child’s:
41          (i) physical needs;
42          (ii) emotional needs;
43          (iii) educational needs;
44          (iv) medical needs; and
45          (v) any special needs;
46          (c) the parent’s capacity and willingness to function as a parent, including:
47          (i) parenting skills;
48          (ii) co-parenting skills, including:
49          (A) ability to appropriately communicate with the other parent;
50          (B) ability to encourage the sharing of love and affection; and
51          (C) willingness to allow frequent and continuous contact between the child and the
52     other parent, except that, if the court determines that the parent is acting to protect the child
53     from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into
54     consideration; and
55          (iii) ability to provide personal care rather than surrogate care;
56          (d) in accordance with Subsection (10), the past conduct and demonstrated moral

57     character of the parent;
58          (e) the emotional stability of the parent;
59          (f) the parent’s inability to function as a parent because of drug abuse, excessive
60     drinking, or other causes;
61          (g) whether the parent has intentionally exposed the child to pornography or material
62     harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;
63          (h) the parent’s reasons for having relinquished custody or parent-time in the past;
64          (i) duration and depth of desire for custody or parent-time;
65          (j) the parent’s religious compatibility with the child;
66          (k) the parent’s financial responsibility;
67          (l) the child’s interaction and relationship with step-parents, extended family members
68     of other individuals who may significantly affect the child’s best interests;
69          (m) who has been the primary caretaker of the child;
70          (n) previous parenting arrangements in which the child has been happy and
71     well-adjusted in the home, school, and community;
72          (o) the relative benefit of keeping siblings together;
73          (p) the stated wishes and concerns of the child, taking into consideration the child’s
74     cognitive ability and emotional maturity;
75          (q) the relative strength of the child’s bond with the parent, meaning the depth, quality,
76     and nature of the relationship between the parent and the child; and
77          (r) any other factor the court finds relevant.
78          (3) There is a rebuttable presumption that joint legal custody, as defined in Section
79     30-3-10.1, is in the best interest of the child, except in cases when there is:
80          (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
81     abuse involving the child, a parent, or a household member of the parent;
82          (b) special physical or mental needs of a parent or child, making joint legal custody
83     unreasonable;
84          (c) physical distance between the residences of the parents, making joint decision
85     making impractical in certain circumstances; or
86          (d) any other factor the court considers relevant including those listed in this section
87     and Section 30-3-10.2.

88          (4) (a) The person who desires joint legal custody shall file a proposed parenting plan
89     in accordance with Sections 30-3-10.8 and 30-3-10.9.
90          (b) A presumption for joint legal custody may be rebutted by a showing by a
91     preponderance of the evidence that it is not in the best interest of the child.
92          (5) (a) A child may not be required by either party to testify unless the trier of fact
93     determines that extenuating circumstances exist that would necessitate the testimony of the
94     child be heard and there is no other reasonable method to present the child’s testimony.
95          (b) (i) The court may inquire of the child’s and take into consideration the child’s
96     desires regarding future custody or parent-time schedules, but the expressed desires are not
97     controlling and the court may determine the child’s custody or parent-time otherwise.
98          (ii) The desires of a child 14 years old or older shall be given added weight, but is not
99     the single controlling factor.
100          (c) (i) If an interview with a child is conducted by the court pursuant to Subsection
101     (5)(b), the interview shall be conducted by the judge in camera.
102          (ii) The prior consent of the parties may be obtained but is not necessary if the court
103     finds that an interview with a child is the only method to ascertain the child’s desires regarding
104     custody.
105          (6) (a) Except as provided in Subsection (6)(b), a court may not discriminate against a
106     parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining
107     whether a substantial change has occurred for the purpose of modifying an award of custody.
108          (b) The court may not consider the disability of a parent as a factor in awarding custody
109     or modifying an award of custody based on a determination of a substantial change in
110     circumstances, unless the court makes specific findings that:
111          (i) the disability significantly or substantially inhibits the parent’s ability to provide for
112     the physical and emotional needs of the child at issue; and
113          (ii) the parent with a disability lacks sufficient human, monetary, or other resources
114     available to supplement the parent’s ability to provide for the physical and emotional needs of
115     the child at issue.
116          (c) Nothing in this section may be construed to apply to adoption proceedings under
117     Title 78B, Chapter 6, Part 1, Utah Adoption Act.
118          (7) This section does not establish a preference for either parent solely because of the

119     gender of the parent.
120          (8) This section establishes neither a preference nor a presumption for or against joint
121     physical custody or sole physical custody, but allows the court and the family the widest
122     discretion to choose a parenting plan that is in the best interest of the child.
123          (9) When an issue before the court involves custodial responsibility in the event of a
124     deployment of one or both parents who are service members and the service member has not
125     yet been notified of deployment, the court shall resolve the issue based on the standards in
126     Sections 78B-20-306 through 78B-20-309.
127          (10) In considering the past conduct and demonstrated moral standards of each party
128     under Subsection (2)(d) or any other factor a court finds relevant, the court may not:
129          (a) (i) consider or treat a parent’s lawful possession or use of cannabis in a medicinal
130     dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in
131     accordance with Title 4, Chapter 41a, Cannabis Production Establishments and Pharmacies,
132     Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection
133     58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession
134     or use of any prescribed controlled substance; or
135          [(b)(ii) discriminate against a parent because of the parent’s status as a:
136          [(i)(A) cannabis production establishment agent, as that term is defined in Section
137     4-41a-102;
138          [(ii)(B) medical cannabis pharmacy agent, as that term is defined in Section
139     26B-4-201;
140          [(iii)(C) medical cannabis courier agent, as that term is defined in Section 26B-4-201;
141     or
142          [(iv)(D) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2,
143     Cannabinoid Research and Medical Cannabis[.]; or
144          (b) discriminate against a parent based upon the parent’s agreement or disagreement
145     with a minor child of the couple’s:
146          (i) assertion that the child’s gender identity is different from the sex assigned to the
147     child at birth; or
148          (ii) practice of having or expressing a different gender identity than the sex assigned to
149     the child at birth.

150          Section 2. Section 80-2a-202 is amended to read:
151          80-2a-202. Removal of a child by a peace officer or child welfare caseworker —
152     Search warrants — Protective custody and temporary care of a child.
153          (1) A peace officer or child welfare caseworker may remove a child or take a child into
154     protective custody, temporary custody, or custody in accordance with this section.
155          (2) (a) Except as provided in Subsection (2)(b), a peace officer or a child welfare
156     caseworker may not enter the home of a child whose case is not under the jurisdiction of the
157     juvenile court, remove a child from the child’s home or school, or take a child into protective
158     custody unless:
159          (i) there exist exigent circumstances sufficient to relieve the peace officer or the child
160     welfare caseworker of the requirement to obtain a search warrant under Subsection (3);
161          (ii) the peace officer or child welfare caseworker obtains a search warrant under
162     Subsection (3);
163          (iii) the peace officer or child welfare caseworker obtains a court order after the child’s
164     parent or guardian is given notice and an opportunity to be heard; or
165          (iv) the peace officer or child welfare caseworker obtains the consent of the child’s
166     parent or guardian.
167          (b) A peace officer or a child welfare caseworker may not take action under Subsection
168     (2)(a) solely on the basis of:
169          (i) educational neglect, truancy, or failure to comply with a court order to attend
170     school; [or]
171          (ii) the possession or use, in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid
172     Research and Medical Cannabis, of cannabis in a medicinal dosage form, a cannabis product in
173     a medicinal dosage form, or a medical cannabis device, as those terms are defined in Section
174     26B-4-201[.]; or
175          (iii) a parent’s agreement or disagreement with a minor child of the couple’s:
176          (A) assertion that the child’s gender identity is different from the sex assigned to the
177     child at birth; or
178          (B) practice of having or expressing a different gender identity than the sex assigned to
179     the child at birth.
180          (3) (a) The juvenile court may issue a warrant authorizing a peace officer or a child

181     welfare caseworker to search for a child and take the child into protective custody if it appears
182     to the juvenile court upon a verified petition, recorded sworn testimony or an affidavit sworn to
183     by a peace officer or another individual, and upon the examination of other witnesses if
184     required by the juvenile court, that there is probable cause to believe that:
185          (i) there is a threat of substantial harm to the child’s health or safety;
186          (ii) it is necessary to take the child into protective custody to avoid the harm described
187     in Subsection (3)(a)(i); and
188          (iii) it is likely that the child will suffer substantial harm if the child’s parent or
189     guardian is given notice and an opportunity to be heard before the child is taken into protective
190     custody.
191          (b) In accordance with Section 77-23-210, a peace officer making the search under
192     Subsection (3)(a) may enter a house or premises by force, if necessary, in order to remove the
193     child.
194          (4) (a) A child welfare caseworker may take action under Subsection (2) accompanied
195     by a peace officer or without a peace officer if a peace officer is not reasonably available.
196          (b) (i) Before taking a child into protective custody, and if possible and consistent with
197     the child’s safety and welfare, a child welfare caseworker shall determine whether there are
198     services available that, if provided to a parent or guardian of the child, would eliminate the
199     need to remove the child from the custody of the child’s parent or guardian.
200          (ii) In determining whether the services described in Subsection (4)(b)(i) are
201     reasonably available, the child welfare caseworker shall consider the child’s health, safety, and
202     welfare as the paramount concern.
203          (iii) If the child welfare caseworker determines the services described in Subsection
204     (4)(b)(i) are reasonably available, the services shall be utilized.
205          (5) (a) If a peace officer or a child welfare caseworker takes a child into protective
206     custody under Subsection (2), the peace officer or child welfare caseworker shall:
207          (i) notify the child’s parent or guardian in accordance with Section 80-2a-203; and
208          (ii) release the child to the care of the child’s parent or guardian or another responsible
209     adult, unless:
210          (A) the child’s immediate welfare requires the child remain in protective custody; or
211          (B) the protection of the community requires the child’s detention in accordance with

212     Chapter 6, Part 2, Custody and Detention.
213          (b) (i) If a peace officer or child welfare caseworker is executing a warrant under
214     Subsection (3), the peace officer or child welfare caseworker shall take the child to:
215          (A) a shelter facility; or
216          (B) if the division makes an emergency placement under Section 80-2a-301, the
217     emergency placement.
218          (ii) If a peace officer or a child welfare caseworker takes a child to a shelter facility
219     under Subsection (5)(b)(i), the peace officer or the child welfare caseworker shall promptly file
220     a written report that includes the child’s information, on a form provided by the division, with
221     the shelter facility.
222          (c) A child removed or taken into protective custody under this section may not be
223     placed or kept in detention pending court proceedings, unless the child may be held in
224     detention under Chapter 6, Part 2, Custody and Detention.
225          (6) (a) The juvenile court shall issue a warrant authorizing a peace officer or a child
226     welfare worker to search for a child who is missing, has been abducted, or has run away, and
227     take the child into physical custody if the juvenile court determines that the child is missing,
228     has been abducted, or has run away from the protective custody, temporary custody, or custody
229     of the division.
230          (b) If the juvenile court issues a warrant under Subsection (6)(a):
231          (i) the division shall notify the child’s parent or guardian who has a right to parent-time
232     with the child in accordance with Subsection 80-2a-203(5)(a);
233          (ii) the court shall order:
234          (A) the law enforcement agency that has jurisdiction over the location from which the
235     child ran away to enter a record of the warrant into the National Crime Information Center
236     database within 24 hours after the time in which the law enforcement agency receives a copy of
237     the warrant; and
238          (B) the division to notify the law enforcement agency described in Subsection
239     (6)(b)(ii)(A) of the order described in Subsection (6)(b)(ii)(A); and
240          (c) the court shall specify the location to which the peace officer or the child welfare
241     caseworker shall transport the child.

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Today’s blog post reviews House Bill 134 (HB0134 (utah.gov)), entitled “Marriage Modifications”.

It addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage, and would repeal a current provision in the Utah Code on interracial marriage (i.e.Utah Code § 30-1-2.2)

H.B. 134 would, if passed into law, enact a new code section, § 30-1-2.4, which is proposed as follows:

28          30-1-2.4. Recognition and validation of marriage regardless of race, ethnicity, or
29     national origin of the parties.
30          (1) As used in this section, “governmental entity” means the state, a county, a
31     municipality, a special district, a special service district, a school district, a state institution of
32     higher education, or any other political subdivision or administrative unit of the state.
33          (2) (a) A marriage between two individuals may not be deemed invalid or prohibited
34     on the basis of the race, ethnicity, or national origin of those individuals.
35          (b) A marriage between two individuals that was not valid or legal before July 1, 1965,
36     on the basis of the race, ethnicity, or national origin of those individuals is considered valid and
37     legal in this state.
38          (3) (a) A county clerk may not refuse to issue a marriage license on the basis of the
39     race, ethnicity, or national origin of the individuals applying for the marriage license.
40          (b) If an employee Ĥ→ [or public official, a public official, or a designee, ←Ĥ of a
40a     governmental entity is authorized to
41     solemnize a marriage under Section 30-1-6, the employee Ĥ→ [or public official, public official,
41a     or designee ←Ĥ may not refuse to
42     solemnize a marriage on the basis of the race, ethnicity, or national origin of the parties to the
43     marriage.
44          (4) A governmental entity, or an employee or public official of a governmental entity,
45     may not deny a right or claim arising from a valid and legal marriage between two individuals
46     on the basis of the race, ethnicity, or national origin of those individuals.

So, is H.B. 134 a good idea? In my view, no.

Utah does not ban interracial or inter-ethnic marriages, nor does it ban marriages on the basis of one’s national origin. We have no need of a law that “recognizes as valid” marriages that are already legally valid. I am not aware of anyone being denied a marriage license or marriage on the basis of his/her  race, ethnicity, or national origin in Utah in my lifetime either (Utah’s anti-miscegenation statute was repealed in 1963).

H.B. 134 appears to me to be unnecessary. If you were wondering whether Utah has a law on the books currently that bans or imposes restrictions on interracial marriage, it’s nothing that scandalous. Here is the law that H.B. 134 would repeal:

Utah Code § 30-1-2.2.  Validation of interracial marriages.

All interracial marriages, otherwise valid and legal, contracted prior to July 1, 1965, to which one of the parties of the marriage was subject to disability to marry on account of Subsection 30-1-2(5) or (6), as those subsections existed prior to May 14, 1963, are hereby valid and made lawful in all respects as though such marriages had been duly and legally contracted in the first instance.

Indeed, the H.B. 134’s sponsor, Republican Rep. Anthony E. Loubet who told St. George News, “It was very clear that you couldn’t discriminate against somebody getting married, based off their race, ethnicity or national origin, but what this does is update the code so it reflects what our current practices are and then allows people the peace of mind knowing that if anything ever happens or changes on the federal side, they still have their protection on the state level.”

(‘We need to be colorblind’: Utah’s revised interracial marriage bill passes House – St George News (stgeorgeutah.com))

Even the bill’s sponsor acknowledges there is no gaping hole or shameful stain on Utah law that needs to be addressed with any new law. There is no justification to “fix” what ain’t broke. The last thing we need is superfluous laws on the books.

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Allegations of Child Abuse vs. Allegations of Parental Alienation

Here’s a very, very short news report on the subject of when allegations of child abuse are countered with allegations of parental alienation:

 https://www.youtube.com/watch?v=44hJ8zWRrik

image.png

I welcome sincere and rational comments on this very important subject.

There are no easy answers to this question, but there is one idea that will help: interview the child (when the child is a competent witness). Even if the interview raises more questions than provides answers, inquiring with the child does more than simply make sense; to me, it’s judicial malfeasance not to inquire with the child, as the child has a greater stake in the child custody and parent-time awards than anyone else. I have yet to have the child interview (in the shamefully rare cases when a child is either interviewed by the judge or in a deposition) do the child more harm than good, and when the child is articulate and credible, the child’s testimony is usually the most (by an order of magnitude) compelling and persuasive evidence.

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Family Law Legislation for the 2024 Utah State Legislative Session

Here is a list of the current proposed family law legislation for the 2024 Utah State Legislative session, along with a (very) brief description of the proposed legislation. If you want to read the complete bill, I have provided the links each of them.

Next month, I will provide my comments and those of others who have expressed their opinions on whether and why these bills should or should not be passed into law.

House Bills

House Bill 20

Title:  Parental Rights Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0020.pdf

Purpose: This bill: clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

House Bill 81

Title: Domestic Violence Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0081.pdf

Purpose: This bill adds the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances; and makes technical and conforming changes.

House Bill 110

Title:  Sex and Kidnap Offender Registry Amendments

https://le.utah.gov/~2024/bills/static/HB0110.html

Purpose: This bill changes references from the Department of Corrections to the Department of Public Safety; clarifies the purpose of the Department of Public Safety keeping certain information for individuals on the Sex and Kidnap Offender Registry; and clarifies the requirements the Bureau of Criminal Identification and the Department of Corrections must check for when an individual petitions to be removed from the registry.

House Bill  129

Title:  Child Support Requirements

Purpose: This bill provides that a parent or other obligated individual is not responsible for child support for a child who is in the custody of the Division of Child and Family Services; and makes technical and conforming changes.

House Bill  131

Title:  Clergy Child Abuse Reporting Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0131.pdf

Purpose:  This bill clarifies that a member of the clergy may report suspected child abuse or neglect in certain circumstances; and makes technical corrections.

House Bill  134

Title:  Marriage Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0134.pdf

Purpose: This bill addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage; repeals a provision on interracial marriage; and makes technical and conforming changes

House Bill  140

Title:  Parental Notification Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0140.pdf

Purpose: This bill amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual access to the parent’s child, and the individual has been convicted of certain crimes; amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and makes technical and conforming changes.

House Bill  157

Title:  Child Custody Factors Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0157.pdf

Purpose: This bill provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered: in a Division of Child and Family Services determination regarding removal of a child from parental custody; and when determining child custody as part of a divorce or other family law proceeding.

House Bill  194

Title:  Child Placement Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0194.pdf

Purpose: This bill amends the definition of “relative” for purposes of child placement, including adoption; and addresses when a court holds a hearing concerning a contested adoption.

House Bill  198

Title:  Child Welfare Placement Review Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0198.pdf

Purpose: This bill addresses the analysis a juvenile court undertakes when evaluating whether to terminate parental rights; and makes technical and conforming changes.

House Bill  199

Title: Child Welfare Revisions

https://le.utah.gov/~2024/bills/hbillint/HB0199.pdf

Purpose: This bill amends definitions related to child welfare in the Utah Juvenile Code

House Bill  200

Title:  Order for Life Sustaining Treatment

https://le.utah.gov/~2024/bills/hbillint/HB0200.pdf

Purpose: This bill modifies professional conduct standards for physicians, advance practice registered nurses, and physician assistants to include obtaining a parent or guardian signature when completing an order for life sustaining treatment for a minor; and makes technical and conforming changes.

House Bill  219

Title:  Divorce Imputed Income Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0219.pdf

Purpose: This bill provides standards for imputing income to a spouse who will be receiving alimony payments from another spouse; provides potential limitations on imputation of income for alimony purposes in some circumstances where the recipient spouse has no recent full-time work history or has been diagnosed with a disability; excludes situations where the recipient spouse has been determined to be at fault; and makes technical and conforming changes.

House Bill  220

Title:  Divorce Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0220.pdf

Purpose: This bill adds factors to be considered when determining the standard of living that existed during a marriage; requires a specific look-back period for information provided to demonstrate the financial conditions and needs of a spouse seeking to be awarded alimony; places restrictions on when a court can reduce a showing of need related to alimony; provides alternative means for demonstrating income and the standard of living during a marriage; and  modifies provisions related to when a court may elect to equalize income between parties by means of an alimony award.

House Bill  234

Title:  Birth Certificate Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0234.pdf

Purpose: This bill requires an individual when petitioning the court for a name or sex designation change on the birth certificate to indicate on the petition whether the individual is registered with the Sex and Kidnap Offender Registry; and authorizes the court to obtain additional information from an individual that is registered with the Sex and Kidnap Offender Registry to determine whether to grant a name or sex designation change petition.

House Bill  272

Title:  Child Custody Proceedings Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0272.pdf

Purpose: This bill defines terms; in certain proceedings involving child custody: specifies requirements for the admission of expert evidence; and  requires a court to consider evidence relating to domestic violence or abuse by a parent; imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child; requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;  requires that certain protective order proceedings comply with specific standards; and makes technical and conforming changes.

SENATE BILLS

Senate Bill 70

Title:  Judiciary Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0070.pdf

Purpose: This bill increases the number of district court judges in the Third Judicial District, Fourth Judicial District, and Fifth Judicial District; increases the number of juvenile court judges in the Third Judicial District and the 15 Fourth Judicial District; and makes technical and conforming changes.

Senate Bill 88

Title:  Juvenile Justice Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0088.pdf

Purpose: This bill defines terms; clarifies requirements regarding the collection of a DNA specimen from a minor adjudicated by the juvenile court; provides that a minor may not be placed in a correctional facility as an alternative to detention; provides a time period in which an agency is required to send an affidavit to an individual who is the subject of an expungement order by the juvenile court; and makes technical and conforming changes.

Senate Bill 95

Title:  Domestic Relations Recodification

https://le.utah.gov/~2024/bills/sbillint/SB0095.pdf

Purpose: This bill recodifies Title 30, Husband and Wife, to Title 81, Utah Domestic Relations Code; recodifies Title 78B, Chapter 12, Utah Child Support Act, to Title 81, Chapter 6, Child Support; defines terms; clarifies provisions related to a claim of a creditor when the joint debtors divorce or are living separately under an order of separate maintenance; clarifies the validation of a marriage to an individual subject to chronic epileptic fits who had not been sterilized; clarifies the validation of an interracial marriage; clarifies the validation of a marriage to an individual with acquired immune deficiency syndrome or other sexually transmitted disease; clarifies provisions regarding the rights and obligations during a marriage; clarifies provisions regarding the dissolution of a marriage, including: an order for separate maintenance; an annulment; and a divorce; clarifies provisions regarding child support, including: the requirements for a child support order; the general requirements for calculating child support; and the requirements for calculating child support for a sole physical custody case, a joint physical custody case, and a split physical custody case; clarifies provisions regarding custody, parent-time, and visitation; repeals statutes related to domestic relations, including a statute on the appointment of counsel for a child; and makes technical and conforming changes.

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Encourage Your Legislators to Vote Against H.B. (House Bill) 272 (2024 Utah General Legislative Session)

According to the “General Description” of H.B. 272, what’s not to like?:

Highlighted Provisions:

This bill:

▸ defines terms;

▸ in certain proceedings involving child custody:

  • specifies requirements for the admission of expert evidence; and
  • requires a court to consider evidence relating to domestic violence or abuse by a parent;

▸ imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child;

▸ requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;

▸ requires that certain protective order proceedings comply with specific standards; and

▸ makes technical and conforming changes.

H.B. 272’s intentions are laudable, but the implementation, if H.B. 272 was made law, would be disastrous (and I choose my words carefully).

We don’t need more laws to prevent domestic violence and child abuse, reason being that more laws never have prevented and never will prevent (because they cannot prevent) domestic violence and child abuse.

Can you identify a single domestic violence victim who wouldn’t have been victimized but for a lack of legislation? Laws in the abstract don’t protect anyone. It’s the fair, effective, creation and enforcement of (needed) laws that protects. Passing more laws cannot guarantee anyone’s safety; laws and court orders don’t stop fists and bullets.

There are real DV and child abuse cases in the courts, but there are far too many fake ones in the courts (more than you likely imagine), and everyone knows why courts are afraid to acknowledge and condemn it: because they’re afraid they’ll be branded as “insensitive” and “uncaring” about DV and child abuse. So judges and commissioners who don’t want to “get it wrong,” overcompensate by “finding” DV and abuse that isn’t there. That way, nobody can claim the courts don’t care, and if innocent people go to prison and become pariahs as a result, “well, better him/her than me.” That’s not justice. That’s not rule of law.

Regarding the proposal in H.B. 272 for amending Section 30-3-10, determining credibility is the sole province of the court. Thus, the problem with “a credible allegation of child abuse” is that few courts can resist the temptation to err on the side of caution by treating virtually any allegation of child abuse as “credible”. To err on the side of caution is still error. Worse, it’s error knowingly committed for the sake of protecting the commissioner or judge from being criticized (or worse) for “getting it wrong.” See the article: Erring on the Side of Hidden Harm.

When judges are told “you need to do a better job identifying protecting DV and child abuse victims,” you’re telling judges to do a job that is not theirs. Overwhelmed judges will (unfortunately) respond to such unfair burdens simply by “finding” more DV and child abuse victims, and then say to the legislature, “Satisfied now?” That benefits no one. It erodes public trust in the courts.

There is a tremendous volume of false DV and child abuse claims. Indeed, I deal with more false claims than real claims at the district court level as a divorce and family law attorney. If you feel judges must “get more training” in the field of DV and child abuse, then requiring them to learn how better to identify real DV and child abuse inherently requires requiring them to learn how better to identify fake DV and child abuse claims.

It is unfair to demand of judges that they compensate for what the litigants might fail to do, i.e., gather and present the evidence necessary to prevail.

“More DV and abuse detection training for judges” sounds good but isn’t. If the state can’t afford more and better judges (and we need to accept that, if it can’t), “more DV and abuse training” is a counterproductive half-measure. If the legislature wants to spend more money on judge training, then spend that money helping judges learn and develop better command of the law, of evidence, and of sound adjudication.

The idea that state district court judges “need more training” in every particular dispute they hear is a problem generally. Our judges cannot become experts on every area of law, nor are they expected to be. All that a judge needs to do competently (and can be expected to do competently) is weigh the evidence presented to him/her correctly and apply the facts to the law that governs the case correctly.

We could “protect kids” from abuse by locking up every parent–that way they can’t abuse their kids. Of course, that way they can’t love and take care of their kids either. We will never solve DV and child abuse with more laws, but we will victimize the innocent if we howl for more witch hunt lawmaking.

Draconian creation and/or enforcement of laws like those proposed by H.B. 272 “protects” some by violating the rights of others. As does legislating and adjudicating on a “better safe than sorry” basis (regardless of whether it’s sincere), instead of on the facts (including the lack thereof). Experts can be helpful, but most cause more confusion than they dispel. Child custody cases today don’t suffer from a lack of expert input, rarely from a lack of needed or even warranted expert input, competent expert input, or justice-promoting expert input. “Expertise” on abuse (whatever this ever-expanding definition of “abuse” is coming to mean) is too subjective and pseudoscientific. This is why HB 272 would ultimately do more harm than good.

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Does an ex-spouse have claims to properties purchased during the marriage but name is not on deed, deed states married man and no mention of the property or distribution in the divorce?

I can answer this question in the context of the law of Utah, which is the jurisdiction where I am licensed to practice divorce and family law. To learn the answer to the question for another state, you would need to consult the law of that jurisdiction and/or consult with an attorney who is licensed in that state.

If your question is, “Do I have a claim to property my spouse purchased during the marriage but did not disclose the existence of during the divorce proceedings (meaning that I discovered its existence only after the decree of divorce was entered by the court)?”, then the answer is (in Utah):

Yes, you may have a claim. Now that means you have an argument for an award of some or all of (or a money judgment for some or all of the value of) that undisclosed property to you. You do not have an automatic right to any such award, but you may have a strong argument for it. If you want to pursue your claim, you should almost always pursue as soon as you possibly can. Delays in asserting and prosecuting a claim can weaken your claim.

Utah Rules of Civil Procedure, Rule 26.1 provides, in pertinent part:

(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.

Note: separate property usually remains separate property in a divorce. Separate property has three (which is basically two) different forms in a marriage: 1) property one owned (and “property” in this sense includes money you owned) before marriage (premarital property) and 2) property purchased with separate property funds. Separate property also includes money or property you obtained during the marriage if you obtained it by gift from someone other than your spouse and it also includes money or property you inherited during the marriage. So if, while married, you inherited a house from your parent, that house would be your separate property. Now one can convert (the legal term is “transmute”) separate property into marital property (by transferring title from yourself to you and your spouse jointly, or by spending money you inherited by adding a room to the marital home, or by spending your inheritance on a fancy cruise for you and our spouse—you get the idea), but if the separate property is not transmuted, it usually (usually) remains your separate property, although Utah law permits a court to award separate property to the other spouse, if circumstances warrant it.

Elman v. Elman (245 P.3d 176, 2002 UT App 83 (Utah Court of Appeals 2002):

¶ 18 Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “‘extraordinary situations where equity so demands.’” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’” (quoting Dunn v. Dunn, 802 P.2d 1314 at 1320)).

And there are these authorities too:

“The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property.” Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990). Such separate property can, however, become part of the marital estate if (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. (Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (citation omitted)).

Premarital property, gifts, and inheritances may be viewed as separate property, and in appropriate circumstances, equity will require that each party retain separate property brought to marriage; however, the rule is not invariable. Burke v. Burke, 733 P.2d 133 (Utah 1987).

A material misrepresentation or concealment of assets or financial condition as a result of which alimony or property awarded is less or more than otherwise would have been provided for is a proper ground for which the court may grant relief to the party who was offended by such misrepresentation or concealment, absent other equities such as laches or negligence…. However, before relief can be granted, it must be determined that the alleged misrepresentation or concealment constitutes conduct, such as fraud, as would basically afford the complaining party relief from the judgment. (Clissold v. Clissold, 30 Utah 2d 430, 519 P.2d 241, 242 (1974) (citations omitted), overruled in part on other grounds by, St. Pierre v. Edmonds, 645 P.2d 615, 619 n. 2 (Utah 1982); accord Boyce v. Boyce, 609 P.2d 928, 931 (Utah 1980) (noting that “[c]learly, a court should modify a prior decree when the interests of equity and fair dealing with the court and the opposing party so require”); Reid v. Reid, 245 Va. 409, 429 S.E.2d 208, 211 (1993) (ruling that “[o]nce the amount of spousal support is determined, the statutes and case law specifically limit the divorce court’s authority to retroactively modify that amount, absent fraud on the court ”) (emphasis added).

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Holt v. Holt – 2024 UT App 6 – reasonable time rule

Holt v. Holt – 2024 UT App 6

THE UTAH COURT OF APPEALS

RHONDA S. HOLT, Appellee,

v.

CHRISTOPHER JOHN HOLT, Appellant.

Opinion

No. 20220090-CA

Filed January 11, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 044902588

Ben W. Lieberman, Attorney for Appellant

Matthew A. Steward and Katherine E. Pepin,

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and

DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1       Christopher and Rhonda Holt’s divorce was finalized in 2004 after the entry of a stipulated settlement agreement and the district court’s entry of a divorce decree. Per the divorce decree, Rhonda[1] was awarded a commercial property in which she operated a salon and Christopher was awarded an equity interest in the property redeemable “when the property is sold.” From the time the court entered the divorce decree, Rhonda operated the salon and did not sell the property or satisfy Christopher’s outstanding interest.

¶2        Years later, Christopher petitioned the district court asking that it require Rhonda to sell the property and satisfy his equity interest, first on the rationale of modifying the divorce decree and later on the rationale of enforcing it. He contended that because “Utah law implies a reasonable time under the circumstances,” the court should compel Rhonda to sell the property. The district court ultimately determined that Rhonda had no obligation to sell the property and declined to impose any deadline by which she had to do so. But under Utah law, a reasonable time for performance will be implied if a contract fails to include a specific time for performance. And on the facts of this case, we conclude that a reasonable time for Rhonda’s performance extends to the time when she ceases to operate a salon on the property.

BACKGROUND

¶3        Christopher and Rhonda were married in 1988. In 2004, Rhonda filed a complaint for divorce, and soon after, the district court granted Rhonda’s motion for default judgment. The court then entered a divorce decree based on the parties’ Stipulation and Settlement Agreement (the stipulation). The record reflects that when the stipulation was entered, each party was represented by counsel. Christopher’s counsel withdrew after the stipulation was filed, just prior to entry of the decree.

The Stipulation and the Decree

¶4        The stipulation included an integration clause indicating that it was the parties’ final agreement. Specifically, it was “a complete settlement of all rights either party may have in the other’s property” and any “valid” modification or waiver of the stipulation’s terms must be “in writing and signed by both parties before a notary public.” The stipulation provided that neither party would receive alimony. Pursuant to the stipulation, the district court entered findings of fact and conclusions of law and a divorce decree that mirrored the provisions of the stipulation.

¶5        At the heart of this matter is section 9(B) of the decree. First, it awarded Rhonda the salon property and ordered Christopher to “execute a quit claim deed” in her favor. Second, it reserved for Christopher “an equitable lien for one-half of the net equity in the property when the property is sold.” Third, it defined net equity as “the gross selling price less realtor commissions and normal closing costs.” And fourth, it reiterated that Christopher “shall only be entitled to his equity when the property is sold.” The preceding section—section 9(A)—awarded Rhonda the parties’ home “free and clear from any claim by” Christopher and instructed that Christopher was to “execute a quit-claim deed in favor of” Rhonda within ten days following entry of the decree. It is noteworthy that section 9(B), in contrast to section 9(A), did not include a specific timeframe related to Rhonda’s satisfaction of Christopher’s equity interest in the property.

The Petition to Modify the Decree

¶6        In October 2018, over fourteen years after the decree was entered, Christopher filed a petition to modify the decree, claiming “a material and unforeseeable substantial change of circumstances.” Specifically, the petition indicated that “the parties did not anticipate that fourteen years would pass” during which Christopher’s equity interest in the property would go unpaid. Christopher sought an order compelling Rhonda to either sell or refinance the property and to satisfy Christopher’s outstanding interest.

¶7        In response, Rhonda moved to dismiss the petition on the ground that Christopher had failed to support his assertion of a material and unforeseeable change in circumstances warranting the requested modification of the decree. Rhonda acknowledged that Christopher would be entitled to have his equity interest in the property cashed out, but she argued that under the plain language of the decree, he was entitled to payment only when the property was sold, which had not yet occurred. Rhonda noted that the parties’ circumstances had not materially changed since the court entered the decree in 2004—she had not sold or refinanced the property and she continued to operate her salon on the property. Quoting Land v. Land, 605 P.2d 1248 (Utah 1980), Rhonda argued that “when a decree is based upon a property settlement agreement, forged by the parties and sanctioned by the court, equity must take such agreement into consideration.” Id. at 1250–51. She noted our Supreme Court’s position that “[e]quity is not available to reinstate rights and privileges voluntarily contracted away simply because one has come to regret the bargain made.” Id. at 1251. Rhonda asserted that the decree does not impose a deadline by which she had to sell the property and “clearly withholds distribution” of Christopher’s interest in the property until it is sold. Thus, she maintained that Christopher “failed to demonstrate that there has been a substantial change in circumstances that was not [contemplated] by the parties at the time the decree was entered.”

¶8        In his opposition to the motion to dismiss, Christopher claimed that he was not represented by counsel during the divorce action and thus was not involved in drafting the decree.[2] He also claimed that he relied on representations Rhonda made both before and after entry of the decree that she would refinance or sell the property “in the very near future to pay him out.” Christopher asserted that prior to the divorce, the parties had received an $84,000 loan from his parents to purchase the property and that when his parents passed away some years later, $84,000 was taken out of his inheritance to pay the obligation. Christopher argued that under the plain language of the decree and under Rhonda’s suggested interpretation of section 9(B), he “could die and not receive any benefit from the agreement” and he could potentially lose his interest in the property if Rhonda were to pass away or transfer the property to someone else, thereby avoiding the satisfaction of Christopher’s equity interest.

¶9        Rhonda responded that the petition before the court was one to modify the decree based on a theory of material change of circumstances—not one to enforce the decree. She argued that this was really a situation of unilateral mistake on his part, and she reiterated her position that hindsight and dissatisfaction with a prior stipulation are not adequate grounds for relieving parties of their contractual obligations. Rhonda again acknowledged her obligation to pay Christopher his share of the equity when the property is sold, but she pointed out that the decree did not specify a sale deadline. She also noted that it would have been very easy to incorporate such a date into the stipulation and the decree if that had been the parties’ intention. To support this position, Rhonda pointed out that section 9(A) of the decree imposed a ten-day deadline for Christopher’s delivery of a quitclaim deed to the parties’ home, while section 9(B), which dealt with the sale of the salon property, included no provision concerning the time for performance.

¶10      Christopher requested that the court hold an evidentiary hearing concerning Rhonda’s motion to dismiss. But the district court denied this request and also denied Rhonda’s motion to dismiss. Eventually, a trial date was set. And at the ensuing bench trial,[3] at which both Christopher and Rhonda testified, the district

court granted Rhonda’s motion for a directed verdict and dismissed the petition on the ground that Christopher had failed to provide sufficient evidence to support the petition.[4]

The Motion to Enforce the Decree

¶11      In July 2021, Christopher filed a motion to enforce the decree in a renewed effort to compel Rhonda’s sale of the salon property. Christopher argued that under the principles articulated in New York Avenue LLC v. Harrison, 2016 UT App 240, 391 P.3d 268, cert. denied, 393 P.3d 283 (Utah 2017), the decree’s lack of an “expressly-stated time[] for performance” signified that the court should impose a “reasonable time under the circumstances” by which Rhonda had to sell the property and that such a time had already passed. See id. ¶ 32 (quotation simplified).

¶12      In response, Rhonda argued that the motion to enforce was simply Christopher’s attempt to get a “third bite at the apple.” Similar to her response to the petition to modify, Rhonda argued that Christopher failed to present sufficient credible evidence to support his contention that the parties’ intent was anything other than to afford Christopher his interest in the property when Rhonda sold it. She contended that because the salon on the property was her “sole source of income,” the parties deliberately omitted any specific performance deadline, providing instead— and explicitly emphasizing—that Christopher would be entitled to payment for his interest when, and only when, the property was sold. Rhonda asserted that it would therefore be inappropriate for the court to impose a reasonable time by which she had to sell the property when the decree’s plain language was straightforward and explicitly did not include one.

¶13 In October 2021, Commissioner Russell Minas heard argument on the motion. The commissioner concluded that “[b]ecause there [was] no deadline provided by the parties, Utah law implies a reasonable time under the circumstances,” see id., which he determined to be “until [Rhonda] ceases to use the Property to operate a business.” The commissioner thereafter issued his recommendation in the matter. See Utah R. Civ. P. 108(a) (“A recommendation of a court commissioner is the order of the court until modified by the court.”).

¶14 Christopher subsequently filed an objection to the recommendation pursuant to rule 108 of the Utah Rules of Civil Procedure. See id. (“A party may file a written objection to the recommendation within 14 days after the recommendation is made in open court[.]”). Christopher acknowledged that the commissioner correctly determined that the reasonable-time rule articulated in New York Avenue applied to this case. But he challenged the commissioner’s application of the rule. He argued that the “reasonable time under the circumstances is determined by looking to the intention of the parties at the time of the formation of the contract” and that in so doing, it is clear the reasonable-time threshold had already passed because neither the stipulation nor the decree intended for Rhonda “to retain the Property and all equity so long as she operated a business.” Rhonda yielded to the commissioner’s interpretation of a reasonable time, arguing that the commissioner correctly defined a reasonable time under all the circumstances.

¶15 The district court heard argument on Christopher’s objection.[5] The court overruled Christopher’s objection from the bench and modified the commissioner’s recommendation. The court concluded that a reasonable time for performance should not be implied here because, per the language of the decree, Rhonda’s deadline to sell the property was whenever she chose to sell it and that “it would be inappropriate for the Court to impose a date by which the Property must be sold.”

¶16      Christopher appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Christopher primarily argues that the district court erred in concluding that the reasonable-time rule was inapplicable here. “We interpret a divorce decree according to established rules of contract interpretation.” Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (quotation simplified), cert. denied, 255 P.3d 684 (Utah 2011). Accordingly, we review the district court’s interpretation of the decree for correctness. See Mintz v. Mintz, 2023 UT App 17, ¶ 14, 525 P.3d 534, cert. denied, 531 P.3d 730 (Utah 2023).

¶18 Christopher also argues that the court “exceeded the scope” of his objection when it addressed “matters not before the court.” The scope of a court’s review of a commissioner’s recommendation turns on the correct interpretation of the applicable rule of civil procedure. Cf. Zions Bancorporation, NA v. Schwab, 2023 UT App 105, ¶ 12, 537 P.3d 273 (holding that the district court’s “statutory interpretation” is reviewed “for correctness”) (quotation simplified); Bermes v. Summit County, 2023 UT App 94, ¶ 28, 536 P.3d 111 (stating that a district court’s “interpretation of a set of statues or ordinances” is reviewed “for correctness”) (quotation simplified), cert. denied, 2023 WL 9058850 (Utah 2023).

ANALYSIS

I. Reasonable Time Under the Circumstances

¶19      Christopher first challenges the district court’s conclusion that “it would be inappropriate for the Court to impose a date by which the property must be sold.” He asserts that the court’s conclusion is incorrect, that the reasonable-time rule is applicable here, that a reasonable time has long since elapsed, and that Rhonda should be compelled to sell the property and satisfy his equity interest. We determine that the district court’s conclusion was incorrect and conclude that the reasonable-time rule is applicable in this matter. We then determine what constitutes a reasonable time for Rhonda’s performance under the circumstances.

¶20 A stipulated divorce decree represents an enforceable contract between divorcing spouses, and so “we interpret the parties’ decree according to established rules of contract interpretation.” Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation simplified). Of course, “the cardinal rule in contract interpretation is to give effect to the intentions of the parties as they are expressed in the plain language of the contract itself,” and “we construe a contract to give effect to the object and purpose of the parties in making the agreement.” New York Avenue LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d 268 (quotation simplified), cert. denied, 393 P.3d 283 (Utah 2017). Key to the issue before us, our principles of contract interpretation further provide “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances,” id. ¶ 32 (quotation simplified), which analysis entails a question of fact, see iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 55, 424 P.3d 970, cert. denied, 425 P.3d 803 (Utah 2018).

¶21 The parties agree on the basic meaning of the terms contained in section 9(B) of the decree. They accept that under section 9(B), Rhonda was awarded ownership of the property, Christopher was required to “execute a quit claim deed” in Rhonda’s favor while reserving for himself “an equitable lien for one-half of the net equity of the property when the property is sold,” and that Christopher would “only be entitled to his equity when the property is sold.” Further, both parties acknowledge that section 9(B) does not include a date by which the property was required to be sold. Based on this understanding, Christopher argues that the district court’s conclusion was incorrect, that the reasonable-time rule does apply, and that Rhonda should be compelled to sell the property immediately, a reasonable time having long since come and gone, or else his interest “could remain trapped forever.”

¶22 Christopher asserts that under our decision in New York Avenue, the district court should be required to apply the reasonable-time rule based on the reality that section 9(B) did not include a specified time of performance. In that case, a seller contracted with a buyer for the sale of certain real estate. 2016 UT App 240¶ 3. Due to unforeseen complications, the transaction was not settled on the date intended by the contract. Id. ¶¶ 5–6. The buyer, still desiring to be bound by the terms of the contract, elected to begin making monthly settlement extension payments to the seller, as provided for in the contract, thus advancing the contract’s intended settlement date to the last day of the month associated with the buyer’s settlement extension payment. Id. ¶ 6. While the contract provided terms to extend the settlement date, it failed to specify a final date regarding the ultimate settlement of the contract or to define the maximum number of settlement extensions available to the parties. Id. ¶ 5. After numerous settlement extensions, the seller sought to terminate the contract. Id. ¶¶ 8–9. Following a summary judgment hearing, the district court determined that the contract entitled the buyer to extend the settlement deadline indefinitely, “so long as valid tender of the extension payment was made.” Id. ¶ 12 (quotation simplified).

¶23 On appeal, we held, in relevant part, that because the contract did “not limit the number of extension payments,” it did “not provide a date by which [seller] must perform its core obligation to complete the purchase of the Property.” Id. ¶ 34. Accordingly, we noted “that if a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances.” Id. ¶ 32 (quotation simplified). And we concluded that the district court erred in granting summary judgment that countenanced an indefinite extension of the time for performance. Id. ¶¶ 29, 32.

¶24 Similar to the seller in New York Avenue, Christopher is concerned that if we conclude that the reasonable-time rule does not apply to section 9(B) of the decree, there exists a possibility that Rhonda could opt to never sell the property and thereby retain all of the equity indefinitely. In reviewing the conclusions of the court, we must evaluate the plain language of section 9(B) of the decree to determine if the district court correctly held that the reasonable-time rule did not apply.

¶25 Based on the plain language of section 9(B), it is obvious that nowhere in its four sentences is there any provision regarding a specific date by which Rhonda must sell the property. Rhonda argues on appeal that it would be improper for the court to impose a reasonable time for performance because, unlike the contract at issue in New York Avenue, section 9(B) did not intend to “create an obligation” for the sale of the property. She further contends that sale of the property is a condition precedent, and thus, she is not required to sell the property but that if she does, Christopher would then be entitled to receive his share of the equity. We are not persuaded by Rhonda’s argument. The intent of the decree was to “resolve all issues between” the parties. Therefore, while section 9(B) was not intended to be a sales agreement, it was also not intended to allow Rhonda to indefinitely prevent the satisfaction of Christopher’s interest. See Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“When we interpret a contract we first look at the plain language of the contract to determine the parties’ meaning and intent.”) (quotation simplified). Accordingly, we agree with Christopher that a reasonable time for performance should be implied. Thus, we conclude that the district court incorrectly determined that the reasonable-time rule was inapplicable here. We next determine what the reasonable time should be, and here we part ways with Christopher and endorse the view adopted by the commissioner.

¶26      Due to the nature of these proceedings and Christopher’s decision not to request transcripts of the prior hearings, we are unable to consider the parties’ presentations before the commissioner or the district court, including not only the arguments they made but also any evidence they introduced or evidentiary proffers they made. Even so, Christopher contends that “[a] reasonable time is defined by the parties’ intentions at the time the contract is formed, not when the dispute arises,” and that because the parties did not intend for his interest to remain unsatisfied this long, a reasonable time has long since elapsed. Conversely, Rhonda contends that “[t]he language of the Decree demonstrates that the Parties intended for [her] to be able to operate her business from the Property to support herself indefinitely.”

¶27 In consideration of what constitutes a reasonable time under the circumstances, we must discern the parties’ intentions from the language of their contract—the stipulated decree—and the relevant circumstances, but in the absence of whatever evidence might have been adduced or proffered at the hearings as we have not been favored with the transcripts. We are mindful that neither party was awarded alimony in this case, meaning Rhonda’s livelihood depended on her continued ability to operate her salon business. And it is significant that not only was no time for Rhonda‘s performance specified, but it was emphasized that Christopher shall be entitled to his equity only “when the property is sold.” The conclusion is inescapable, as determined by the commissioner, that the intention of the parties, as reflected in the language they employed, was that Rhonda’s obligation to sell the property and cash out Christopher would be triggered when she ceased to operate the salon business. That occurrence would equate to the reasonable time for her performance under the unique circumstances of this case.

II. Scope of District Court Review

¶28      Christopher next challenges the district court’s expansive consideration of the commissioner’s recommendation, arguing that the court “exceeded the scope” of his objection by addressing “matters not before the court.” We disagree with Christopher’s position. A plain reading of rule 108(f) of the Utah Rules of Civil Procedure requires the district court to make “independent findings of fact and conclusions of law based on the evidence.” And our jurisprudence makes clear that a district court has plenary responsibility for “what is essentially its own order.” Somer v. Somer, 2020 UT App 93, ¶ 12, 467 P.3d 924 (quotation simplified). Accordingly, we conclude that the court did not exceed the scope of its authority in reviewing the commissioner’s recommendation without being confined to the contours of the objection made by Christopher.

¶29      “We interpret court rules, like statutes and administrative rules, according to their plain language.” Day v. Barnes, 2018 UT App 143, ¶ 12, 427 P.3d 1272 (quotation simplified). Rule 108 provides a procedure by which a party may object to a commissioner’s recommendation and request that the district court review the recommendation. Within this framework, subsection (a) first indicates that a commissioner’s recommendation “is the order of the court until modified by the court” and that “[a] party may file a written objection to the recommendation.” Utah R. Civ. P. 108(a) (emphasis added). Next, subsection (b) explains that any objection “must identify succinctly and with particularity the findings of fact, the conclusions of law, or the part of the recommendation to which the objection is made and state the relief sought,” and it also provides that the accompanying memorandum of support “must explain succinctly and with particularity why the findings, conclusions, or recommendation are incorrect.” Id. R. 108(b). Lastly, subsection (f) directs that “[t]he judge will make independent findings of fact and conclusions of law based on the evidence, whether by proffer, testimony or exhibit, presented to the judge, or, if there was no hearing before the judge, based on the evidence presented to the commissioner.” Id. R. 108(f) (emphasis added). Thus, the plain language of the rule “does not provide for an appeal-like review of a commissioner’s decision, but instead requires independent findings of fact and conclusions of law based on the evidence.” Day, 2018 UT App 143, ¶ 16 (quotation simplified).

¶30 In the case at hand, after the commissioner made his recommendation, Christopher filed an objection wherein he explained that while the commissioner “correctly found” that the reasonable-time rule applied to section 9(B) of the decree, he erred because the recommendation was not based on evidence that, at the time the decree was entered, the parties intended that Rhonda would “retain the Property and all equity so long as she operated a business.” After a hearing on Christopher’s objection, the court modified the recommended order based on its independent determination that it would be “inappropriate” to apply the reasonable-time rule and “to impose a date by which the Property must be sold.” Christopher now argues that the court’s decision to modify the recommendation concerning the reasonable-time rule “exceeded the scope” of his objection because, as the objecting party, he “was entitled to define the scope of his objection, and he did so narrowly.”

¶31 We reject this argument. As just explained, when faced with an objection to a commissioner’s recommendation, the responsible district court judge is expected to make “independent findings of fact and conclusions of law based on the evidence.” Utah R. Civ. P. 108(f) (emphasis added). We have previously explained that because a commissioner’s recommendation is “the order of the district court until modified by that court,” “it would make little sense that the district court would be limited in reviewing what is essentially its own order.” Day, 2018 UT App 143, ¶ 18 (quotation simplified). Therefore, while rule 108 provides that the objecting party must proceed with “particularity” concerning the basis of the objection, Utah R. Civ. P. 108(b), that same particularity does not circumscribe the authority of the reviewing court and does not limit the reviewing court’s ability to make its own findings and conclusions, see id. R. 108(f). Thus, notwithstanding Christopher’s “narrowly” defined objection, the court’s modification of the commissioner’s recommendation did not exceed the appropriate scope of review in a procedural sense, even though we conclude that the court’s substantive conclusion was incorrect.

CONCLUSION

¶32 The district court erred because the reasonable-time rule should have been applied in this case, and the reasonable time to be imputed is essentially the time as determined by the commissioner, namely when Rhonda ceases operating her salon on the property. We remand so the court can adjust its order accordingly. At the same time, we conclude that the court did not exceed the scope of its review authority under rule 108.

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


[1] Because the parties share the same last name, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Christopher, then represented by new counsel, may have been confused about this because the decree was entered on the basis of his default. But the record in this case demonstrates that Christopher was represented by counsel right up until the time the decree was entered on the basis of his stipulated default.

[3] With no transcript of the bench trial submitted by Christopher, we rely on the minutes of the proceedings found in the record. Cf. In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 85, 536 P.3d 38 (stating that “when an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below”) (quotation simplified).

[4] In May 2021, Christopher appealed, requesting that this court review the dismissal of the petition to modify and “all subsidiary rulings and orders leading to final judgment,” but he moved to voluntarily dismiss this appeal shortly thereafter, which motion this court granted.

[5] As with the bench trial, Christopher did not request a transcript of this hearing and we therefore rely on the minutes of the proceedings found in the appellate record to understand what occurred during the hearing. See supra note 3. While it perhaps is not always necessary to include a transcript of hearings in the appellate record, we have previously determined that a transcript “is necessary in cases where the court issued an oral ruling at the conclusion of the hearing and where the court’s eventual written order is silent with regard to the matter being challenged.” In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 86, 536 P.3d 38“In such cases, a transcript of the hearing is necessary for us to effectively review the challenged issue” because without it “we do not know what evidence or argument the court relied on in rendering any decision.” Id. While we do have a spartan description of the hearing included in the court’s minutes, which is not without utility, we discourage parties from relying wholly on the court’s minutes when a transcript is readily available.

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Divorce Mediation – To Good to Be True (For Most People)

I know you want to believe that divorce mediation is the trick to a fast, easy, cheap, amicable divorce. I know you want to believe this, and we know why. But if it sounds to good to be true, it likely is. So it is with mediation.

Divorce mediation won’t work unless you and your spouse trust each other to negotiate in good faith and honor any settlement agreement reached. You cannot get out of mediation any more than you put into it.

Divorce mediation was a good idea that the legal profession spoiled by making it mandatory.

Divorce mediation is a good idea when it’s done at the beginning, but divorce lawyers put it off until they’ve squeezed a hefty profit out of their clients through a bunch of pretrial motions and discovery. Thus, mediation typically “succeeds” because by the time the parties get to mediation they’re so emotionally and financially spent that they settle out of resignation and exhaustion; “think win-win” had nothing to do with it.

Mediation worked well when it was voluntary and between two people who both believed they might reach an agreement they trusted each would honor. Now mediation is just one more of the “dumb [and expensive] things I gotta do” before I can get divorced.

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

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Some hard truths about divorce litigation in Utah.

To those of you who ask, “How did I lose that argument in my divorce case? The judge couldn’t say why he/she believed my witness(es) over my spouse’s witness(es)!”:

A district court “may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

To those of you who ask, “How could the court dismiss the opinions of my expert witness?”:

“Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified).

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

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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 | divorceutah.com | 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 | divorceutah.com | 801-466-9277

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2023 UT App 62 – Cox v. Cox – Adequacy of Court Findings

2023 UT App 62 – Cox v. Cox

THE UTAH COURT OF APPEALS

BLANCHE COX,

Appellee,

v.

JAMES A. COX,

Appellant.

Opinion

No. 20210455-CA

Filed June 8, 2023

Fourth District Court, Provo Department

The Honorable Lynn W. Davis

The Honorable Robert C. Lunnen

No. 124402230

Brett D. Cragun, Attorney for Appellant

Jarrod H. Jennings, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 James and Blanche Cox were married for over 20 years, during which time they had 10 children and acquired a large number of marital assets. In September 2012, Blanche filed for divorce.[1] After 4 years of pretrial litigation and then 14 days of trial, the district court issued a 35-page divorce ruling that settled various issues relating to child custody, child support, alimony, and the division of the marital estate.

¶2        James now appeals, arguing that many of the court’s rulings were not supported by adequate findings. We agree with James with respect to each challenged ruling. We accordingly vacate those rulings and remand for further proceedings.

BACKGROUND

¶3        James and Blanche Cox were married in 1990. During their marriage, they had 10 children and acquired a large number of assets. In September 2012, Blanche filed for divorce. After 4 years of litigation, the case went to trial, and that trial occurred over the course of 14 days between December 2016 and May 2017. In January 2017 (while the trial was proceeding), the court issued a bifurcated divorce decree granting Blanche’s request for a divorce and reserving other issues for further hearings and determinations.

  1. The Ruling

¶4        In October 2017, the court issued a 35-page Ruling and Memorandum Decision (the Ruling) that entered findings of fact and legal determinations regarding many issues related to child custody, child support, alimony, and the valuation and division of the marital estate. This appeal implicates the court’s findings and determinations regarding essentially three groups of issues: the parties’ marital properties, alimony and child support, and marital debts.[2]

Marital Properties

¶5        The court found that James and Blanche “enjoyed the benefit or acquired” five properties during their marriage: (1) the Hildale Home, (2) the Henderson Home, (3) the Eagle Mountain Home, (4) the Rockville Property, and (5) the Cedar Highlands Lots. The court then entered findings and made rulings regarding how to divide the parties’ marital interest in each property.

¶6        The Hildale Home: The court found that James built this home (located, as our reference would suggest, in Hildale, Utah) before his marriage to Blanche. The court found that James, Blanche, and their children lived in this property until 2010, after which they moved to a different residence. The court heard testimony that title to the Hildale Home was held by the United Effort Plan Trust (the Trust). But the court then concluded that no evidence had been presented of the value of James’s interest in the Trust and that “establishing the value of a beneficial interest in property of the [Trust]” would be “practically and legally impossible.” The court acknowledged that Blanche had submitted an appraisal of the Hildale Home at trial (which, according to the record on appeal, estimated its value as being around $200,000), but the court concluded that the appraisal was deficient because it failed to account for costs and fees associated with the Trust ownership. From all this—and without any further explanation— the court then ruled that Blanche was “entitled to an award of $100,000” based on the home’s value.[3]

¶7        The Henderson Home: The court found that this home was purchased by James in 2004 for $420,000. It found that after the parties fell behind on mortgage payments, at which point they still owed around $288,000, the house was “lost in a short sale in 2013 for $225,000.” The court made a finding that the fair market value of the home at the time, according to Zillow, was $323,861.

¶8        But the court also heard competing testimony from the parties about whether the loss of the home could have been avoided. From Blanche, the court heard testimony that the home “could have been rented out” but that James refused to sign papers that would have modified the loan and, theoretically, allowed the parties to avoid losing it. From James, however, the court heard testimony that maintaining or leasing the home wasn’t actually possible for several different reasons.

¶9        From this, the court found that “[t]he parties would likely have had at least $100,000 in equity to split if they had kept” the Henderson Home and “rented it as suggested by [Blanche] numerous times.” The court then ruled that James “should be responsible to, and give [Blanche] credit for, $50,000 in equity representing her share of the lost asset dissipated by him.”

¶10 The Eagle Mountain Home: The court found that James and Blanche bought this home in 2009 and made a $120,000 down payment on it, $80,000 of which was borrowed from James’s mother. The court found that they moved into the home sometime in 2010 and began using it as their primary residence. James testified that he had at one point intended to sell the Eagle Mountain Home in an effort “to cover all the debts” on the parties’ credit cards but that Blanche refused to cooperate with him on the sale. Evidence presented at trial suggested that the home was sold in 2015 by a bankruptcy trustee for $520,000, with the parties still owing $292,000 at that time. Without citing any specific piece of evidence, the court found that if the Eagle Mountain Home had “not been lost to a forced sale, [Blanche] would have been able to receive at least another $25,000 today because of the current market value of $606,000,” and the court then ruled that she was “entitled to that sum.”

¶11      The Rockville Property: The court described this as a “7.5 acre parcel of farm property” located near Rockville, Utah. In its ruling on how to divide the marital interest in this property, the court referred to evidence it had received indicating that the parties were “forced to sell” the property for $270,000 after falling behind on the mortgage payments, as well as evidence showing that the parties still owed around $190,000 on the property when it was sold.

¶12      But the court then referred to several sources of evidence it had received that suggested that this property had a higher value and could have been sold for more. For example, it referred to evidence that a realtor had listed what the court thought was a similar 11.4 acre parcel for $1,195,000 (though the court then acknowledged that it was “debatable” whether this comparison provided an accurate valuation for the Rockville Property). The court also noted testimony that a realtor had valued the property at “approximately $900,000” due to “28 [shares of] water rights [that were] attached to it.” And the court referred to an “analysis from Zillow” that suggested the property’s value was $1,195,000.

¶13      From all this, the court then found that the forced sale of the property for $270,000 was a loss that “cost the parties at least $450,000 each,” and the court awarded Blanche “damages of $450,000 offset by monies she did receive in the amount of $42,000.”

¶14 The Cedar Highlands Lots: The Cedar Highlands Lots were “two lots down by Cedar City,” one of which was around 2 acres and the other around 2.5 acres. The court found that the lots were purchased for $40,000 each sometime in 2003 but that they were later “lost” through a forced sale because of the parties’ ongoing failure to pay various taxes and fees.

¶15 At trial, there was conflicting evidence and argument about the amount of the loss suffered by the parties because of the sale of these lots. James testified that the parties lost $60,000, while Blanche claimed that they lost somewhere between $153,000 and $280,000 (with her estimate being largely based on the lots’ appreciation in value since the time that the parties had purchased them—and, thus, the parties’ loss of potential equity by virtue of the forced sale). The court ultimately found that the parties’ inability to “pay the property taxes and Homeowners Association fees . . . resulted in [an] $80,000 loss to the parties.” The court did not explain how it had arrived at the $80,000 amount, nor did it explain how this loss was to be distributed between the parties.

Alimony and Child Support

¶16 Blanche’s Income: Under an initial subheading of the Ruling that was entitled “The Parties[’] Income,” the court found that Blanche is “an experienced bookkeeper with QuickBooks who has elected to be employed by About Faceology,” but that she was currently a “self employed Uber/Lift driver and has been so since 2015.” Under a subsequent subheading entitled “Income of the Parties,” however, the court then determined that “[f]or child support purposes [Blanche’s] income cannot be imputed at more than [the] minimum wage of $1,257 per month.” Elsewhere in the Ruling, and without explanation for the discrepancy, the court found that Blanche’s imputed minimum wage income was actually $1,260 per month (rather than $1,257). The court included no explanation for its conclusion that Blanche’s income could not be imputed at more than the minimum wage.

¶17 Child Support: At the time of the Ruling, the parties had five minor children. The court initially ordered James to pay $3,781 per month in child support. Elsewhere in the Ruling, however, and again without explanation, the court stated that it was ordering James to pay $3,336 per month in child support.

¶18      Alimony: Turning to alimony, the court noted that under the controlling statute, it should consider a number of factors. One of the factors it considered was Blanche’s “financial condition and needs.” With respect to this factor, the court opined that Blanche’s “needs have been overstated in her financial declarations,” but the court made no ruling about Blanche’s financial condition and what her needs actually were. With respect to Blanche’s earning capacity, the court again noted that Blanche “claim[ed] she earns just a little better than minimum [wage] even though she is an experienced and sophisticated bookkeeper with many years of experience having run, managed, overseen and monitored millions of dollars in income and expenses that ran through the parties[’] businesses.” But the court made no further findings about her particular earning capacity as it related to a potential alimony award. The court also noted that there were “minor children in the home,” five of whom were “younger than eighteen years of age or have not yet graduated from high school with their expected class.” But the court made no findings about how (or how much) these children impacted Blanche’s earning capacity. Finally, with respect to James’s ability to pay alimony, the court found that James was a “voluntarily under employed” electrician, and it then opined that “[t]here is no question that [Blanche] claims that her needs exceed hers and [James’s] monthly incomes.” Considering these factors together, the court then ordered James to pay $8,286 per month in alimony.

Marital Debts

¶19 Finally, the court made certain findings concerning the “business debt” that was “incurred” by the parties during the marriage. While the divorce proceedings were pending, James filed a Chapter 7 bankruptcy petition. In the Ruling, the court found that, after the bankruptcy proceedings had begun, James incurred $30,000 in debt while purchasing stock in his business and business-related property from the bankruptcy trustee. Since the court determined that Blanche was “entitled to 50% of [the] value” of the business, the court then concluded that she was entitled to an award of $15,000 as a result of this debt.

¶20      The court also noted that Blanche had “received financial compensation from the sale of assets and the conversion of assets into cash.” But the court opined that it was “difficult, if not impossible, to decipher whether each expenditure was personal, business related, or partially business-related.” From this, and without further explanation, the court awarded Blanche “judgment against [James] in the amount of $50,000.”

  1. Motions for Clarification

¶21      James and Blanche were both dissatisfied with the Ruling, and in January 2018, they each filed a motion requesting clarification. Each motion raised a host of issues regarding alleged errors.

¶22      Of note here, in her motion, Blanche asked for clarification “as to whether or not” she was entitled to $25,000 for the Eagle Mountain Home or, instead, “another amount.” She argued that an award of $25,000 “seem[ed] incorrect mathematically” because if the fair market value of the Eagle Mountain Home was $606,000, and the home sold for $520,000, the “resulting equity would have been $86,000, which if divided equally would result in [Blanche] receiving judgment for $43,000,” as opposed to $25,000. Blanche also requested clarification as to the court’s determination “that the loss to the parties” concerning the Cedar Highlands Lots was $80,000. She argued that, based on the evidence presented at trial, the loss was $280,000. Blanche also requested clarification regarding the court’s determination of marital debts, specifically, whether the $15,000 was “to be added to the $50,000 for a total of $65,000” or whether “there [was] another number the court considered.” Finally, Blanche requested clarification of the court’s order regarding child support, given that in one portion of its Ruling the court ordered James to pay child support in the amount of $3,781 per month, and in another portion it altered that amount to $3,336 per month.

¶23 In his motion, James likewise requested clarification of various aspects of the Ruling. Among other things, he asked the court to “enter supplemental, amended, and or additional findings” regarding its ruling that Blanche was “entitled to $100,000” concerning the Hildale Home, explaining that he was “unaware of any evidence upon which the [court] could have relied in finding the $100,000 in equity the [court] awarded” Blanche. James also asked for clarification on the court’s findings concerning the Henderson Home, Eagle Mountain Home, and Rockville Property, asserting that the court had not “identified the facts upon which it relied” in making its calculations. Regarding the Henderson Home, James alleged that the court’s finding that “the parties would likely have had at least $100,000 in equity if the home had been rented” for the years 2013 through 2017 “fail[ed] to account for the costs of managing a rental property from a long distance, the likelihood of vacancies, the cost of utilities, maintenance, repairs, property taxes” and other related fees. Regarding the Eagle Mountain Home, James argued that the Ruling did not “accurately account for the additional $25,000” that Blanche received from the bankruptcy trustee “in addition to the $102,486.28 she received” from the sale. Regarding the Rockville Property, James requested clarification as to what facts the court relied upon to conclude that “the parties owned 28 shares of water,” given that the evidence “actually showed,” in his view, that they owned only 19 shares of water. Additionally, James requested clarification as to the court’s comparison of the Rockville Property to a parcel of “11.4 acre[s] of land with Virgin River frontage that was listed for $1,195,000.” Finally, with respect to the marital debts, James asked the court to “enter supplemental, amended and or additional findings” that would “identify the facts upon which [the court] relied in awarding [Blanche] $15,000 representing [the business’s] hypothetical equity or value.”

¶24 In the meantime, the Office of Recovery Services (ORS) intervened in the case based on its obligation to provide child support enforcement services. ORS filed a memo in response to Blanche’s motion for clarification in which it likewise requested clarification of the child support amount. After recounting its view of the evidence, ORS recommended that if Blanche’s income was imputed at minimum wage, and if James’s income was imputed at $18,500 per month, James should be ordered to pay $3,236 per month for the five minor children.

¶25      In August 2018, the court issued a ruling on James’s and Blanche’s motions. With respect to the child support amount, the court now ordered that James’s monthly obligation be $3,236 per month, thus apparently adopting ORS’s recommendation. With respect to the properties, the court now ruled—without explanation—that Blanche was entitled to $25,000 in relation to the Eagle Mountain Home and $40,000 for the Cedar Highland Lots. And with respect to the marital debts, the court found— again without explanation—that “[t]he $15,000 amount awarded is to be added to the $50,000 amount awarded for a total of $65,000” to be awarded to Blanche.

¶26 The court ordered Blanche’s counsel to prepare the final findings of fact and conclusions of law. In a November 2018 filing, however, Blanche alleged that she was unable to do so without “additional findings” regarding, among others, the marital debts. In May 2019, the court heard additional oral arguments. After the parties filed additional objections and motions, the case was reassigned from Judge Lynn Davis—who had heard the trial testimony and had issued both the Ruling and the rulings on the motions for clarification—to Judge Robert Lunnen. Judge Lunnen then heard oral arguments on the parties’ objections and outstanding motions.

  1. The Supplemental Decree

¶27      In April 2021, the court (through Judge Lunnen) issued a “Supplemental Decree of Divorce” (the Supplemental Decree).[4]

¶28 The Supplemental Decree reiterated and incorporated many of the findings and determinations from the Ruling. As in the Ruling, for example, the court awarded Blanche $100,000 for the Hildale Home, $50,000 for the Henderson Home, and the (clarified) amount of $40,000 for the Cedar Highlands Lots. But without explanation, the court altered the order regarding the Eagle Mountain Home, awarding Blanche $43,000 as opposed to the $25,000 that was previously ordered. Also without explanation, the court altered the order regarding the Rockville Property, first concluding that Blanche’s offset should be $38,000, not $42,000, and now awarding Blanche $412,000 from this property as opposed to the $408,000 that had previously been awarded.

¶29      The court also determined that Blanche’s income should be imputed at minimum wage for a total of $1,260 per month. Based on its findings about the parties’ incomes, it then ordered James to pay $3,236 per month in child support, and it again ordered him to pay $8,286 per month in alimony.

¶30 Finally, the court awarded Blanche $65,000 relating to the marital debts. The court explained that $15,000 of that amount “represent[ed] her interest” in various purchases made by James from the bankruptcy trustee and that the remaining $50,000 represented “her interest in other assets, business and otherwise.”

¶31      James timely appealed.

ISSUE AND STANDARD OF REVIEW

¶32 James argues that the district court issued “inadequate” fact findings to explain its rulings regarding the marital properties, child support and alimony, and marital debts. “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 (quotation simplified); see also Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (“We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions—under a correction-of-error standard, according no particular deference to the trial court.” (quotation simplified)).[5]

ANALYSIS

¶33 A district court’s “[f]indings of fact are adequate . . . only when they are sufficiently detailed to disclose the steps by which the district court reached its ultimate conclusion on each issue.” Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 5, 397 P.3d 645. When assessing a challenge to the adequacy of a district court’s findings, we look to whether the court “adequately disclosed the analytic steps” it took in reaching its conclusions. Keiter v. Keiter, 2010 UT App 169, ¶ 21, 235 P.3d 782. In this sense, the court’s findings of fact must show that its “judgment or decree follows logically from, and is supported by, the evidence.” Id. ¶ 17 (quotation simplified). “This obligation facilitates meaningful appellate review and ensures the parties are informed of the trial court’s reasoning.” Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258; see also Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (explaining that findings “are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based”). While “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made,” Fish, 2016 UT App 125, ¶ 22 (quotation simplified), we “will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings,” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993) (quotation simplified).

¶34 James argues that a number of the court’s findings were inadequate. His arguments address three groups of findings— namely, findings regarding (I) marital properties, (II) child support and alimony, and (III) marital debts. We address each group in turn.[6]

  1. Marital Properties

¶35 James first challenges the adequacy of the findings that supported the rulings about how to value and distribute the parties’ marital properties. We recognize at the outset that district courts “have considerable discretion in determining property distribution in divorce cases.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 11, 440 P.3d 757 (quotation simplified). But while a district court “does not have to accept [a party’s] proposed valuation” of an item in the marital estate, the court “does have to make findings sufficient to allow us to review and determine whether an equitable property award has been made.” Taft v. Taft, 2016 UT App 135, ¶ 53, 379 P.3d 890. In ruling on such a claim, we will uphold a district court’s “valuation of marital assets” if “the value is within the range of values established by all the testimony, and as long as the court’s findings are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 64, 507 P.3d 385 (quotation simplified), cert. denied, 525 P.3d 1259 (Utah 2022).

  1. The Hildale Home

¶36 James first argues that the court’s findings regarding the Hildale Home were inadequate. In James’s view, the court “simply concluded that $100,000 was an appropriate amount of an award without providing factual findings” supporting “the appropriateness” of that award. We agree.

¶37 The court’s discussion of the Hildale Home spans roughly two pages of the Ruling. Much of the discussion concerns the ownership of the home. The court found that the home’s title is held by the Trust, that James’s interest in the home is that “of a beneficiary” to the Trust, and that Blanche, by contrast, is “not a legal beneficiary” of the Trust. But the court then found that “[n]o evidence was presented to the court of the value [of] [James’s] beneficial interest” in the Trust and that “establishing the value of a beneficial interest in property of the [Trust] is practically and legally impossible[,]” in part, because “the Trust is not receptive to, nor responsive to, legal inquiries.” The court also recognized that Blanche submitted an appraisal of the home, but it then concluded that the appraisal was not an adequate mechanism for establishing the home’s value because the appraisal failed to account for “title to the home being in the [Trust], the costs of getting the [Hildale Home] conveyed from the [Trust], or the thousands of dollars owed to the [court] appointed Trustee of the [Trust] which the Trustee is owed for administering the [Trust’s] assets.” After discounting its ability to rely on either James’s interest in the Trust or Blanche’s appraisal, the court ruled that the property was “a marital asset” to some “narrow extent.” Without further explanation, it then ruled that while it couldn’t grant title to Blanche, she was “entitled to an award of $100,000.”

¶38      We recognize the difficulties that the court faced with this trial in general—as should be clear by now, this was a very complicated divorce with a lot of things to decide and divide. And as evidenced by the preceding paragraph, the nature of parties’ apparent interest in the Hildale Home made the question of how to divide that interest particularly complicated. But even so, we see nothing in the Ruling that “adequately disclosed the analytic steps” the court took, Keiter, 2010 UT App 169, ¶ 21, when deciding that Blanche was entitled to $100,000. The court clearly explained what it thought it couldn’t rely on, but it didn’t explain what it thought it could rely on or how it arrived at this particular amount. Without such an explanation, James has no meaningful way to challenge that $100,000 award, nor do we have any meaningful way to assess whether it was legally warranted in light of the “matrix of possible factual findings” on this issue that are apparent from the record. Hall, 858 P.2d at 1025 (quotation simplified). We accordingly vacate this determination.

  1. The Henderson Home

¶39 James next argues that the court “did not provide any analysis” as to how it determined there was $100,000 in equity in the Henderson Home and that, as a result, the $50,000 award to Blanche was based on inadequate findings. We agree.

¶40      The court found that the home was purchased by James in 2004 for $420,000. It explained that by August 2012, James and Blanche were “months behind in their [mortgage] payment” and that they owed $288,000 when the home was “lost in a short sale in 2013 for $225,000.” The court made a finding that the fair market value of the home at the time—according to Zillow—was $323,861.[7] The court found that James and Blanche “would likely have had at least $100,000 in equity to split if they had” managed to keep the home, but because James “ignored” Blanche’s suggestions to rent the home out, which in theory would have prevented them from losing it, it then ruled that James “should be responsible to, and give [Blanche] credit for, $50,000 in equity representing her share of the lost asset dissipated by him.” It appears the court thus based the $50,000 award on its finding that “the parties could likely have rented and made money as shown or just maintained [the Henderson Home] and sold it for profit presently.”

¶41      James’s initial argument here is that it’s unclear how the court arrived at the $100,000 in equity that it then divided. In response, Blanche suggests that this amount could have been derived from the court’s apparent acceptance of the home’s fair market value as being $323,861 (a value derived from Zillow— which, again, neither party has challenged on appeal as being improper), an amount that is approximately (though, we note, not precisely) $100,000 more than the parties received in the short sale. We have some concern that Blanche is asking us to do too much inferential work on our own, and we could vacate on this basis alone. But in any event, the court’s division of the apparent equity also seems to have been based on a dissipation (or, perhaps, a waste) determination stemming from James’s conduct. Assuming this was so, the court’s findings about James’s conduct, whether the home could actually have been rented out, what the parties could have received in rent, and whether this unspoken amount would actually have prevented them from losing the home were all either missing or decidedly cursory. We’ve previously held, however, held that when a court rules that a party “should be held accountable for the dissipation of marital assets,” the court must support the ruling with “sufficiently detailed findings of fact that explain the trial court’s basis” for that ruling, and we’ve also laid out a number of factors that “may be relevant to” and could support such a ruling. Rayner v. Rayner, 2013 UT App 269, ¶¶ 19–21, 316 P.3d 455 (quotation simplified). While that list is not mandatory or exhaustive, we still have an inadequate findings-based foundation here from which we could review what seems to have been an implicit dissipation determination. When coupled with the lack of explanatory findings about the basis for the equity determination, we conclude that the findings about this home are, as a whole, legally inadequate to support meaningful appellate review of this ruling. We accordingly vacate them.

  1. The Eagle Mountain Home

¶42      James argues that the court’s findings regarding the Eagle Mountain Home were legally inadequate. We agree.

¶43 In the Ruling, the court (through Judge Davis) initially awarded Blanche $25,000 for this home. But the court failed to explain the analytic steps it took to arrive at that amount. The court did enter a few findings about this home—namely, that the parties made a $120,000 down payment when they purchased the home in 2009 ($80,000 of which was borrowed from James’s mother), that they were forced to sell it in 2015 in conjunction with James’s bankruptcy, and that, as a result of that sale, Blanche received “one half” of its equity. But the court made no findings about the sale price or how much equity the parties had in the home at the time of the sale. And then, without any explanation, the court opined that “[h]ad it not been lost to a forced sale,” Blanche “would have been able to receive at least another $25,000 today” because of the home’s “current market value.” The court provided no basis for the $25,000 amount, and we see no reasonable basis in its findings for inferring one.

¶44      Of note, the court (through Judge Lunnen) then changed the awarded amount in the Supplemental Decree, now awarding Blanche $43,000 for it. But the court didn’t explain why it increased this award from the award that had previously been entered in the Ruling. And while Blanche suggests on appeal that the court had now accepted a new valuation of the home that she offered in her motion for clarification, the court never said that it was doing so, nor did it provide any other explanation for why it increased this award at all, let alone by this particular amount.

¶45      In light of this procedural history, it’s unclear to us what analytic steps led the court to first award Blanche $25,000 for this home and what caused the court to later change that award to $43,000. As a result, the findings with respect to this home are legally inadequate and are therefore vacated.

  1. The Rockville Property

¶46      James argues that the court’s findings about the Rockville Property are legally inadequate because it’s “not clear” how the court “reached its valuation of the Rockville Property” or how it divided that value as part of its division of the marital estate. We agree.

¶47 In the Ruling, the court explained that the Rockville Property was a “7.5 acre parcel of farm property” owned by James and Blanche near Rockville, Utah. As for its value and how to determine that value, the court pointed to three options: (1) it noted that a realtor had listed a similar 11.4 acre parcel for $1,195,000, though the court opined that this valuation was “debatable”; (2) the court noted that Blanche “discussed” its value with a realtor who “indicated back then” (which, though unsaid by the court, seems from context to have been in 2013) that the “lot was worth approximately $900,000, due to the 28 water rights attached to it”; and (3) the court pointed to a “[c]urrent market value analysis from Zillow” that “estimate[d]” the property’s value at $1,195,000. The court then found that the parties were “forced to sell” the property in December 2013 for $270,000 due to financial troubles. And the court apparently faulted James for this, determining that at the time of the forced sale, the parties “only owed approximately $190,000” on the property, that it could have been refinanced, and that it was James’s fault that they did not do so. From this, the court found that the forced sale “cost the parties at least $450,000 each,” and it accordingly awarded Blanche “damages of $450,000 offset by monies she did receive in the amount of $42,000.”

¶48 From an adequacy-of-the-findings perspective, the initial problem here is that the court never stated whether it was accepting $1,195,000 or $900,000 as the property’s value. Given that the property’s value would be the numerator for any division of it as a marital asset, this omission is, of course, significant. And while Blanche invites us to engage in some loose math that would account for both possibilities and arrive at the same endpoint, the difference between the two initial valuations might matter if James wished to mount a sufficiency of the evidence challenge. Moreover, to the extent that the court’s determination about how to divide the property’s value turned on an implicit dissipation determination, we again note that the court failed to support such a determination with adequate findings. And finally, while the court offset the award to Blanche by “monies she did receive in the amount of $42,000,” an amount that it later changed to $38,000 in the Supplemental Decree, the court didn’t explain the basis for either amount in either ruling.[8]

¶49 Given the unanswered questions about how the court valued both this property and the offset, we have no basis for conducting a meaningful review of this award. We accordingly vacate it.

  1. The Cedar Highlands Lots

¶50 James’s final property-related challenge is to the findings regarding the Cedar Highlands Lots. In James’s view, the court improperly failed to “indicate . . . how the $80,000 was calculated.” We again agree.

¶51      In the Ruling, the court found that James and a business partner had purchased the two lots for $40,000 each, that Blanche had “controlled the book-keeping for the marital businesses,” and that the lots “were lost when the parties were unable or could not pay the property taxes and Home Owners Association fees,” thus “result[ing] in [an] $80,000 loss to the parties.” In a subsequent ruling, the court determined that this loss should now result in an award of $40,000 to Blanche, and that award was later confirmed in the Supplemental Decree.

¶52 From the court’s findings, it’s unclear why the court determined that there was an $80,000 loss. The court seems to have assumed that the lots were completely lost with no return in value, but the court never said so. And more importantly, even assuming that this was the implicit finding, the court never explained why it concluded that Blanche should receive an award of $40,000 as the result of this particular loss to the marital estate of $80,000. Without such an explanation, we have no meaningful basis for reviewing the ruling. As a result, we vacate it.

  1. Child Support and Alimony

¶53 James challenges the adequacy of the findings relating to child support and alimony. James’s challenges here fall into two groups: first, he challenges the adequacy of the findings relating to Blanche’s income (which, as explained below, matter to both child support and alimony); and second, with respect to the alimony determination, he challenges the adequacy of the court’s findings relating to Blanche’s financial condition and needs.

  1. Blanche’s Income

¶54      James argues that the court’s findings regarding Blanche’s income were inadequate because they failed to “provide any reasoning for disregarding [Blanche’s] earning capacity.” We agree.

¶55      A party’s income matters to a determination of both child support and alimony. First, with respect to child support, a “noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 34, 509 P.3d 806 (quotation simplified); see also Utah Code §§ 78B-12-202, -301 (establishing guidelines for child support awards). Importantly, the court “is required to enter detailed and specific findings on all material issues which must be considered when making a child support award.” Breinholt v. Breinholt, 905 P.2d 877, 881 (Utah Ct. App. 1995) (quotation simplified). But “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman, 2017 UT App 192, ¶ 6 (quotation simplified). Second, with respect to alimony, a court must examine, among other factors, “the recipient’s earning capacity or ability to produce income.” Miner v. Miner, 2021 UT App 77, ¶ 16, 496 P.3d 242 (quotation simplified). And a court must in “all cases . . . support its alimony determinations with adequate findings . . . on all material issues,” and “failure to do so constitutes reversible error, unless pertinent facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Id. ¶ 17 (quotation simplified).

¶56      Of note, when “there is insufficient evidence of one of the statutory alimony factors, courts may impute figures.” Gardner v. Gardner, 2019 UT 61, ¶ 98, 452 P.3d 1134 (quotation simplified). For example, a “court may impute income to a former spouse for purposes of calculating alimony after finding that the former spouse is voluntarily unemployed or voluntarily underemployed.” Fish, 2016 UT App 125, ¶ 15. And it “is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134 (emphasis in original). But when a court imputes income, the “imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Christensen v. Christensen, 2017 UT App 120, ¶ 22, 400 P.3d 1219 (quotation simplified); see also Reller v. Argenziano, 2015 UT App 241, ¶ 33, 360 P.3d 768 (“Before imputing income to a parent, the trial court must enter findings of fact as to the evidentiary basis for the imputation.” (quotation simplified)).

¶57      Income can likewise be imputed as part of a child support determination. See Utah Code § 78B-12-203(8). But, as with an alimony award, a court must support such an imputation with adequate findings. See id. § 78B-12-203(8)(a) (explaining that in contested cases, “[i]ncome may not be imputed to a parent unless,” after an evidentiary hearing on the matter, the court “enters findings of fact as to the evidentiary basis or the imputation”); id. § 78B-12-203(8)(b) (detailing the evidentiary bases upon which a court may impute income for child support purposes); see also Rayner, 2013 UT App 269, ¶ 10 (“Imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” (quotation simplified)).

¶58 Here, the court determined that although Blanche was currently working as a “self employed Uber/Lift driver,” her “income cannot be imputed at more than minimum wage of $1,257 per month.” In a different portion of the Ruling, however, the court found that Blanche’s “gross income” should actually be imputed at “$1,260 per month.”

¶59 On appeal, James doesn’t focus on this three-dollar discrepancy. Rather, James argues that the court erred by failing to explain why Blanche’s income should be imputed at minimum wage at all. As James points out, the court elsewhere found that Blanche is “an experienced bookkeeper with QuickBooks who has elected to be employed by About Faceology,” and it further found that she was “an experienced and sophisticated bookkeeper with many years of experience having run, managed, overseen and monitored millions of dollars in income and expenses that ran through the parties[’] businesses.”

¶60      Having reviewed the Ruling, we see no explanation for the court’s determination that, although Blanche is an experienced bookkeeper with the skill set to manage millions of dollars in income for a company, her income should still be imputed at minimum wage. In an attempt to justify this on appeal, Blanche points to a passing statement from the alimony portion of the ruling in which the court noted that the parties “have ten children, five of which are younger than eighteen years of age or have not yet graduated from high school with their expected class.” But as James points out in response, the parties had even more minor children at home during the years in which Blanche was working as a bookkeeper with responsibilities for “millions of dollars in income.” And while it’s possible that the court believed that something had now changed that would prevent Blanche from still doing this work (such as her new status as a post-divorce single parent), the court never said this or entered any findings to support such a determination, it never explained why it was implicitly determining that Blanche could work as an Uber/Lyft driver but not as a bookkeeper, and it entered no findings to explain why her current employment as an Uber/Lyft driver would result in an income imputation of minimum wage.

¶61      To be clear: as with the other issues in this appeal, we express no opinion about the proper resolution of any of these questions. But without an explanation from the district court, James has no basis for properly challenging the decision about Blanche’s income, nor do we have an adequate basis for reviewing it. Given the importance of Blanche’s income to both child support and alimony, we accordingly vacate those rulings.

  1. Blanche’s Financial Condition and Needs

¶62 As part of its alimony determination, the court was also required to consider Blanche’s “financial condition and needs.” Miner, 2021 UT App 77, ¶ 16 (quotation simplified). James argues that the court failed to enter adequate findings to support this assessment. We agree.

¶63 In the Ruling, the court noted that Blanche had claimed that she had “monthly needs of $18,565,” but it then concluded that these needs were “overstated.” And while Blanche had also suggested that she needed the alimony award to account for “over $200,000 in credit card and business debts,” the court suggested that this debt was either accounted for by other portions of its ruling or had “been discharged in the bankruptcy case.”

¶64 But even so, while the court then concluded that James “simply does not make sufficient money to satisfy all of [Blanche’s] claims” about what “she reasonably needs to support herself,” the court did not make any determination about what Blanche’s needs actually are. As James correctly points out, the absence of such an explanation prevents us from conducting a meaningful review of how this factor should weigh into the court’s alimony award, a problem that is compounded by the failure discussed above to adequately explain its determination about Blanche’s income.

¶65 We accordingly vacate the alimony award to allow the court to enter more detailed findings and, “if necessary, recalculat[e] . . . appropriate alimony.” Fitzgerald v. Fitzgerald, 2005 UT App 67U, para. 6 (quotation simplified); see also Eberhard v. Eberhard, 2019 UT App 114, ¶¶ 39–40, 449 P.3d 202 (faulting a district court for not “spelling out” “how much more [the petitioner] actually needs each month to pay down her debt and elevate herself to the marital standard of living,” thus leaving the appellate court “unable to discern whether the alimony award, in fact, exceeds her needs”).

III. Marital Debts

¶66 Finally, James challenges the adequacy of the court’s findings with respect to the parties’ marital debts. We agree that these findings are inadequate.

¶67      “In issuing a divorce decree, a trial court must include an order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage.” Fox v. Fox, 2022 UT App 88, ¶ 32, 515 P.3d 481 (quotation simplified), cert. denied, 525 P.3d 1263 (Utah 2022); see also Utah Code § 30-3-5(3)(c)(i). Utah law “requires only a fair and equitable, not an equal, division of the marital debts.” Fox, 2022 UT App 88, ¶ 32 (quotation simplified). A district court is in the “best position to weigh the evidence, determine credibility and arrive at factual conclusions”; as a result, a district court’s division of marital debts is “entitled to a presumption of validity.” Mullins v. Mullins, 2016 UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified). But, again, the district court must enter findings of fact that are “sufficiently detailed to disclose the steps by which [it] reached its ultimate conclusion on each issue.” Oldroyd, 2017 UT App 45, ¶ 5.

¶68 Here, the court found that the “parties incurred business debt while married.” James challenges the adequacy of the findings with respect to two of those debts.

¶69      First, the court found that as a result of James’s bankruptcy, James took on $30,000 in debt to finance the purchase of his business’s stock and other business-related property. In the court’s view, Blanche was “entitled to 50% of [the] value” of the business, which meant, in its view, that she was also entitled to $15,000. But the court never explained why it concluded that Blanche was entitled to this amount. While it’s possible, as Blanche now suggests, that the court thought that James had drawn the $30,000 from marital assets—and, thus, that $15,000 of it belonged to Blanche—the court didn’t say this, and its reference to this as “$30,000” in “debt” that James had incurred is somewhat at odds with this inference. In the absence of any explanation, we vacate this ruling.

¶70      Second, at the close of the “Marital Debts” section of its ruling, the court found that Blanche had “received financial compensation from the sale of assets and the conversion of assets into cash.” But it then opined that it was “difficult, if not impossible, to decipher whether each expenditure was personal, business related, or partially business-related.” Without any further explanation, the court then held that Blanche

was “awarded judgment against [James] in the amount of $50,000.”

¶71                   It’s entirely unclear to us what the basis for this $50,000

award was. So far as we can tell, the court seems to have concluded that Blanche had already received some prior distributions from marital assets and that she should now receive $50,000 more. But there’s no explanation for how the court arrived at this particular amount, what the amount was linked to, or why it would be listed alongside an analysis of “Marital Debts.” Without any such explanation, we vacate this award.

CONCLUSION

¶72 We agree with James’s assertion that the challenged findings were not legally adequate and that these inadequacies impaired both his ability to challenge the court’s various rulings and our ability to review them. We accordingly vacate the above rulings and remand the case with instructions for the court to enter more detailed findings and then alter any of its rulings as may be necessary.

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

 

[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.

[2] In this Background, we’ll recount the main findings regarding each ruling at issue on appeal, but in some instances, additional relevant findings will be discussed in the Analysis below.

[3] With respect to some (though not all) of the dollar amounts included in the rulings at issue, the court added “.00” signifiers. For readability, those have been omitted throughout this opinion.

[4] As noted above, the court had previously entered a bifurcated divorce decree while the trial on the parties’ assets and the like was still ongoing.

[5] As evidenced by the passages quoted above, there’s something of a disconnect in how we’ve referred to this kind of argument in past cases. In some cases, we’ve described it as an argument about the “legal adequacy” of the district court’s findings, see, e.g.Lay v. Lay, 2018 UT App 137, ¶ 20, 427 P.3d 1221, but in others, we’ve described it as an argument about the “legal sufficiency” of the findings, see, e.g.Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262. For consistency’s sake, it might be better if bench and bar alike settled on a single usage. And on reflection, we suggest that such an argument should be described in adequacy terms.

The reason for this is to reduce the potential for confusing this kind of argument with the similar sounding but substantively distinct “sufficiency of the evidence” argument. At the risk of over-simplification: a sufficiency of the evidence argument asserts that there was insufficient evidentiary support for a particular factual finding. As detailed more fully below, however, the argument at issue here—a challenge to the adequacy of the findings—asserts that the court’s findings did not adequately explain the basis for the court’s rulings, thereby impairing our ability to review those rulings (for sufficiency of the evidence or anything else).

[6]Two notes are warranted at the outset—one about our usage patterns regarding the rulings at issue, and one about a threshold argument made by Blanche.

First, as discussed above, there are two decisions that largely drive the various arguments in this case: the Ruling and the Supplemental Decree. The Ruling was issued by Judge Davis, who heard the trial evidence, while the Supplemental Decree was issued by Judge Lunnen, who was assigned to the case after the Ruling was issued. At one of the hearings in the intervening period, Judge Lunnen responded to a party’s argument by stating that “[t]he findings, they’re set in stone. So all this is . . . a result of the findings.” As noted, however, Judge Lunnen did alter a few of the Ruling’s legal determinations in the Supplemental Decree. In consequence of how this all played out, the Supplemental Decree recites many of the findings that were issued in the Ruling, though not with the same level of detail. It instead essentially incorporates the bulk of the Ruling by implicit reference. For this reason, the parties’ arguments on appeal have largely focused on whether the findings from the Ruling were adequate, and we’ll follow suit. To avoid redundancy, we won’t repeatedly mention whether we think the findings from the Supplemental Decree were likewise inadequate (even if they were reiterated in the Supplemental Decree); instead, we’ll discuss the Supplemental Decree only in those instances where it differs in some meaningful way from the Ruling (usually because of an altered legal determination).

Second, in her opening brief, Blanche argues that James did “not comply with Utah’s marshaling requirement” in his briefing on appeal. But the marshaling requirement applies when a party “seeks to prevail in challenging the sufficiency of the evidence to support a factual finding or a verdict on appeal.” State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645; see also State v. Wall, 2020 UT App 36, ¶ 53, 460 P.3d 1058; Wilson v. Sanders, 2019 UT App 126, ¶ 17, 447 P.3d 1240. As noted, however, James is not arguing that there was insufficient evidence to support any particular finding. Rather, James is arguing that the findings were inadequate to explain the court’s various rulings. As we’ve explained, an argument about the adequacy of the findings presents a legal question. Because of this, “marshaling is not required.” Jensen v. Jensen, 2009 UT App 1, ¶ 8 n.3, 203 P.3d 1020; see also Woodward v. Fazzio, 823 P.2d 474, 477–78 (Utah Ct. App. 1991) (“There is, in effect, no need for an appellant to marshal the evidence when the findings are so inadequate that they cannot be meaningfully challenged as factual determinations. . . . Rather, appellant can simply argue the legal insufficiency of the court’s findings as framed.”).

 

[7] While a topic at oral argument, neither party raised on appeal the issue of whether the district court could appropriately rely on Zillow for its valuation of the property, as opposed to evidence submitted at trial. For this reason, we do not address the issue here.

[8] It seems possible (if not probable) that this offset was intended to reflect a determination that the parties received $80,000 in equity when they sold the property for $270,000 while still owing $190,000 on it. But if this was the determination, (1) the court didn’t say so, and (2) it also didn’t explain the basis for initially deviating upward by $2,000 to arrive at $42,000, nor did it explain the basis for subsequently deviating downward by $2,000 to arrive at $38,000.

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Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

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

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What Should I Do When a Family Court Judge Refuses to Look at My Evidence?

What should I do when a family court judge refuses to look at my evidence of abuse because my ex’s lawyer lied about me bringing it to him when I had a witness with me?

What you can or should do depends upon why the judge would not consider your evidence.

You say that the judge refused to review your evidence because the judge believed a lie that your ex’s lawyer told him (I presume) something along the lines of “Objection, Your Honor, I was never given a copy of these documents/photographs/recordings. I’m not prepared to address them.”

You claim that you can prove that your ex’s lawyer is lying because you had a witness with me when you delivered the evidence to your ex’s lawyer (I presume) well in advance of the hearing.

It appears that either the judge did not believe you, or, if you did not bring the witness with you to court, that the judge ruled that without the witness’s testimony the judge would not believe that you served your ex’s lawyer with the evidence, and thus would not allow you to present that evidence to the judge.

The lesson learned here?: when you deliver or serve documents/photographs/recordings to someone and need proof that you did so, use a method of delivery or service that provides an objective means of proving it. Have the lawyer or someone at his/her office sign for the documents/photographs/recordings when you or someone from the post office deliver(s) them.  Or you could email the documents/photographs/recordings to the lawyer, which would another way of proving that you delivered/served them. Another thing you could do is file a copy with the court which, though it does not objectively prove you delivered/served the documents on the lawyer, the point is that if you went to the trouble of filing them with the court, then it’s more than likely you also delivered/served them on the lawyer too. Another thing you or your lawyer should do is file a certificate of service with the court that you or your lawyer served/delivered them.

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

https://www.quora.com/What-should-I-do-when-a-family-court-judge-refuses-to-look-at-my-evidence-of-abuse-because-my-exs-lawyer-lied-about-me-bringing-it-to-him-when-I-had-a-witness-with-me

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Is 50/50 custody likely when the parents live in the same neighborhood?

What is the likelihood of reverting to 50/50 custody when the parents live in the same neighborhood? Mom still cares for the child over 80%

Your question states in part, “What is the likelihood of reverting to 50-50 custody.” Your use of the word “reverting” implies that at one time in the past you and the other parent exercised joint equal (50/50) custody of the child. It appears that at some point one or both of you moved away from each other such that 50/50 custody could not be practicably exercised anymore, at which point sole or primary custody of the child was awarded to the mother. 

It appears that either the mother has moved into your neighborhood or you have moved into the mother’s neighborhood, such that 50/50 custody can now be practicably exercised again.  

Unless you have an unusual case in which the court does not allow the parents to determine what the custody and parent time schedules are, you and the mother could agreed to resume a 50/50 custody and parent time schedule, if you wanted. If you want to do that, it would be wise to write up a new agreement indicating that you and the mother agree to exercise 50/50 custody and parent time and have that agreement made the new order of the court. 

If the mother refuses to agree to resume a 50/50 custody and parent time schedule, the question then becomes whether the court would grant your petition to revert back to a 50/50 schedule and resume that schedule for you and the child. 

I cannot speak for all jurisdictions and the laws that apply in each of them, but I can tell you that in the state of Utah, where I practice divorce and family law, simply moving closer to the other parent, so that joint equal (50/50) custody could be practicably unsuccessfully exercised, is usually not enough of a reason to modify the child custody and parent time order: 

Huish v. Munro, 191 P.3d 1242 (2008 UT App 283): 

To demonstrate a substantial change of circumstances . . . the asserted change must, therefore, have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship. 

Thorpe v. Jensen, 817 P.2d 387, 391 (Utah Ct.App. 1991): 

[The] need for caution was emphasized in Kramer v. Kramer, 738 P.2d 624 (Utah 1987), where the court noted that “a central premise of our recent child custody cases is the view that stable custody arrangements are of critical importance to the child’s proper development.” Id. at 626 (citations omitted). The “change of circumstances” threshold announced in Hogge and Becker is elevated to discourage frequent petitions for modification of custody decrees. The Hogge test was designed to “protect the custodial parent from harassment by repeated litigation and [to] protect the child from ‘ping-pong’ custody awards.” Hogge v. Hogge, 649 P.2d at 53-54. This policy is soundly premised. 

But there is this (from the case of Miller v. Miller, 480 P.3d 341 (2020 UT App 171): 

[I]f a court determines a petition as a whole clearly does not allege a change in circumstances that has any relation to the parenting skills or custodial relationship or the circumstances on which the custodial arrangement was based, it may dismiss the petition for failure to state a claim. See O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; cf. Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the materiality requirement, the change in circumstances must “have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship” or “appear on their face to be the kind of circumstances on which an earlier custody decision was based”). 

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

https://www.quora.com/What-is-the-likelihood-of-reverting-50-50-custody-when-the-parents-live-in-the-same-neighborhood-Mom-still-cares-for-the-child-over-80/answer/Eric-Johnson-311  

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Do I have to pay the court to go to trial?

Do I have to pay the court to go to trial?

I am a divorce and family lawyer. I was asked this question and was a little surprised that this wasn’t widely known: 

In Utah, do I have to pay the courthouse and/or the judge or courthouse personnel for every day my divorce or child custody trial takes place?  

Answer: No.  

You are charged nothing for use of the courthouse, judge, and courthouse personnel for your trial, no matter how long the trial is set to take. 

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

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Should I intentionally botch my hair follicle test?

Would it be better to botch my hair follicle test so it reads nothing, or allow the judge and the world to see what I’ve been doing the last 6 months? 

First, learn the truth about hair follicle drug test accuracy. 

Second, reduced to its essence your question is, “Should I lie/deceive?” No, you should not. 

Third, when people try to lie and deceive to gain an advantage, those who are caught in their lies and deception cannot be trusted anymore, even when they tell the truth. 

See “The Boy Who Cried ‘Wolf’”https://etc.usf.edu/lit2go/35/aesops-fables/375/the-boy-who-cried-wolf/   

I know you don’t want to suffer for your wrongdoing. Few do. But it is part of the process of being accountable, responsible, and changing for the better. 

I know you fear (and with good reason) the punishment being excessive and unfair. But that doesn’t justify engaging in more wrongdoing. Two wrongs don’t make a right. 

If you are serious about being a responsible adult and changing for the better, you may, after conferring with a good (meaning not only a skilled but a decent) lawyer want to tell the court how you wrestled with this problem to show the court that you understand the difference between truth and lies, right and wrong, paying the price for one’s wrongs, and that you want no more and no less than for the punishment to fit the crime. 

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

https://www.quora.com/Would-it-be-better-to-botch-my-hair-follicle-test-so-it-reads-nothing-or-allow-the-judge-and-the-world-to-see-what-Ive-been-doing-the-last-6-months/answer/Eric-Johnson-311    

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Do attorneys ever have to represent relatives?

Do attorneys ever have to represent relatives or is that a conflict of interest?

I will give my personal opinion (as a lawyer, but not as a lawyer giving anyone any particular legal advice) as it applies in the jurisdiction where I practice divorce and family law (Utah).  

There is no inherent conflict of interest in an attorney representing a relative simply by virtue of the client being a relative. There is no inherent conflict of interest in an attorney representing a relative against another relative either simply by virtue of the client being a relative.  

If you learn that the opposing party’s attorney is a relative of that party, that is not a conflict of interest that would disqualify that attorney from representing that party.   

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

https://www.quora.com/Do-attorneys-ever-have-to-represent-relatives-or-is-that-a-conflict-of-interest/answer/Eric-Johnson-311  

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