Tag: appellate court

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 | | 801-466-9277  

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Can you get a post-judgment interest rate higher than the statutory rate?

Did you know you can request a post-judgment interest rate that is higher than the default statutory rate? 

It’s true.  

While the court does not have the discretion to lower, stay, or waive statutory interest rate, it does have discretion to exceed statutory interest if equity so requires. 

Please don’t make me regret sharing this by asking for crazy amounts of interest now.  

A judgment for child support arrearages is a “judgment” within meaning of statute providing that, unless otherwise specified by contract, judgment shall bear interest at rate of 12% per annum; thus, custodial spouse is entitled to statutory rate of interest on the judgment until paid in full; although trial court may, in its discretion under divorce statute, raise statutory interest if equity so requires, court does not have the discretion to lower, stay, or waive interest. Utah Code Ann. §§15-1-4, 30-3-5(1). Stroud v. Stroud, 738 P.2d 649 (Utah Ct. App. 1987), judgment aff’d, 758 P.2d 905 (Utah 1988). Osguthorpe v. Osguthorpe, 804 P.2d 530 (Utah Ct. App. 1990). 

Interest accruing to wife on monies due from husband in property division in divorce judgment was at statutory rate, rather than the lower rate ordered by trial court. U.C.A.1953, 15-1-4. Marchant v. Marchant, 743 P.2d 199 (Utah Ct. App. 1987).  

A higher interest rate than statutorily allowed may be equitably imposed in divorce action under where, “under the circumstances, that award is reasonable,” and, second, that an increase of 2% over the statutory interest rate imposed on the amount not paid to the receiving party within six months was not an abuse of discretion. Pope v. Pope, 589 P.2d 752, 754 (Utah 1978). In divorce action, trial court did not err in ordering that if husband failed to pay wife specified sum of cash within six months of trial court’s order that such amount would bear interest at the rate of 10% per year. Pope v. Pope, 589 P.2d 752 (Utah 1978).  

Section 15-1-4 provides the “minimum interest allowable.” Id. (emphasis added). The statute “does not preclude a District Court, under [section 30-3-5] from imposing an interest rate of more than [the statutory postjudgment rate] where, under the circumstances, that award is reasonable and equitable.” Wadsworth v. Wadsworth, — P.3d —-, 2022 WL 130617, 2022 UT App 5 (citing Stroud v. Stroud, 738 P.2d 649, 650 (Utah Ct. App. 1987) (quoting Pope v. Pope, 589 P.2d 752, 754 (Utah 1978)).  

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

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Why do people need legal advisors if all the laws can be found on the Internet?

Why do people need legal advisors (I’m not referring to litigators) if all the laws can be found on the Internet?

Good question, and the answer is simple and clear:

There are many times when people need legal experts (and that usually means lawyers) to advise them—even though all the laws can be found on the Internet—because even if you know where a law can be found that does not mean you know what the law means or how it applies or functions.

While some laws could be compared to instruction sheets or recipes, i.e., “If this and this happens, then that is the consequence,” other laws define terms, other laws give judges a range of and limitations to their authority (called discretion), other laws describe the elements of crimes or civil causes of action that have to be met to “win” the case.

Even if you read a particular law, rule, or regulation, there is a large legal vocabulary you would need to understand to make sense of them. Do you know what a tortfeasor is? A prima face case? An ex parte motion? A percipient witness? You get the idea.

Even if you read a particular law, rule, and/or regulation and believed you understood how the courts and government agencies apply them, your belief would not matter if the interpretation and construction of the law were declared to be something else by the Supreme Court, or by some other applicable appellate court or by the agency that is responsible for interpreting and construing rules and regulations.

Worse, the interpretation and construction of laws changes. Just look at how the meaning and application of the First and Second Amendments to the Constitution have changed and developed over time. So unless you are keeping up with these developments and know where to find the current interpretations and construction (to say nothing of ensuring that laws and rules you find online weren’t repealed some time in the past but nobody bothered to update the website), you can—and should—seek the help of specialists and experts on the subject of law, its creation, its meaning, and its application.

This is why simply knowing where to find a law does not mean you would necessarily know what it means or how it applies and thus not how it affects or may affect you.

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

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Is it more important to study statutes or case law?

You must study each, but that does not mean you must devote the same amount of time to each.

You must first study the statute to know what the statute provides and to see how you construe the statute before you see whether your construction and application of the statute mirrors that of the appellate courts.

Then you need to spend most of your time reviewing the appellate court decisions (case law) to ensure that you correctly understand how the appellate courts construe and apply the statute, so that you can see whether your particular client and case are helped or hindered by both the statute and the appellate courts’ construction and interpretation and application of the law.

If all you did was study appellate case law, however, then you would be doing yourself and your client a disservice. If you don’t do that, then if all you do is take the appellate courts’ decisions as gospel, you may end up perpetuating and erroneous construction and application of a statute to your client’s/cause’s detriment. There are many instances in the past and there will be many instances to come where a sharp attorney realizes that the appellate courts have misconstrued and/or misapplied the statute. So you have to read the statute first and do your best to understand its meaning and application yourself.

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

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What Legal Research Is and Why It’s Important to Your Case

Most clients have no idea how much work takes place behind the scenes at most law firms. More than the copious phone calls, emails and text messages back and forth to opposing counsel/parties. Planning, research, evidence gathering, document drafting, court filings, etc. are vital steps in ensuring that we provide clients with the best legal work possible.

Legal research is crucial because to make or refute a claim, arguments must rest on a solid foundation of compelling authorities that persuade the reader—in most cases, a judge or court commissioner—to issue a decision that benefits the case.

Researching legal arguments includes reviewing the statutes and the decisions of the courts that construe the meaning and application of those statutes.

The legislature passes statutes (in Utah it’s the “Utah Code”). The appellate courts (courts that hear appeals of the trial court decisions when parties claim the trial court judge committed a legal error or errors) interpret the Code and determine whether the trial court got it right or wrong. We refer to these decisions of the appellate courts (Utah Court of Appeals and Utah Supreme Court) as “case law,” which, as the name implies, is based upon real-life cases that have been brought before a court, and how said court decided upon said cases. These court decisions bind not only the people who were involved in the case itself, but set “precedent” for how trial courts will construe the law in the future, until the Code changes or until an appellate court may strike down that decision in the future.

This means that if one year I’m able to make a great argument based upon a decision of the Utah Court of Appeals, but the following year the Utah Supreme Court abrogates (overrules and does away with) that decision, then I cannot cite that case in any future arguments. A large part of legal research involves reviewing the statutes and the case law to ensure they are still current, still binding. As you can imagine there’s a lot of digging to be done, and what I have mentioned thus far is just about legal research; imagine all the other things I must do besides legal research to build a strong case.

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

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