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Tag: commissioner

Is there a difference between hearings and trials in Utah divorce cases?

Yes. A hearing is not the same as a trial. While there may be some similarities, they are not the same thing and do not accomplish the same objectives.

The primary difference between a trial and a hearing is that a trial disposes of the law suit after the parties present evidence to the judge for a final ruling on the case. The trial is the end of the case (unless there is an appeal after trial, but that’s a different subject for another blog).

Hearings take place before trial, are usually shorter than a trial, and are used to resolve issues that arise during the pendency of the case before trial. You can and likely will have multiple hearings in your case, while there is just one trial.

Hearings usually take minutes or hours. Trials take longer, usually several days or weeks.

Hearings take place before trial.

Your first experience with the courtroom (whether in the courtroom or whether you participate via remote video conference) will almost surely be in a hearing, not trial.

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

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Is Court-Ordered Therapy Over-Used? By Braxton Mounteer, legal assistant.

Whether you believe that everyone needs (or could benefit from) therapy or that it is only for the most dysfunctional families, you, like most people, likely agree some therapy has a place in family law matters. For all the benefits of court-ordered therapy, however, therapy can be misused and abused.

For therapy to be effective in these kinds of settings, if you don’t have willing and earnest participation, it’s not going to work. It is hard work to confront your own faults and the faults of those who may have hurt you. It’s hard to better yourself. It’s hard to reconcile with past abuse, betrayals, and other kinds of mistreatment. One who is forced into therapy will, in most cases, refuse to participate or even actively oppose it. Is it any wonder why?

Courts often order too much therapy, with “too much” meaning either ordering therapy too often, or ordering therapy for too long. There are many reasons for this, but two of the worst are virtue signaling courts and greedy therapists.

Many judges and commissioners order therapy so that they can’t be accused of not being thorough, of not being sufficiently sensitive and caring and protective. This results in therapy being ordered even when it’s not needed or even warranted. It’s easy for courts to order therapy. It feels good. It’s a cheap, easy way for courts to look good. It doesn’t cost the commissioners and judges a penny to order therapy.

The point of ordering family members into therapy is rarely “eh, see if it helps.” Not everyone needs therapy. Some problems aren’t problems (or big enough problems) to warrant therapy. It’s likely a safe bet that most people might benefit from a little therapy. We’re all flawed. “Better safe than sorry” is tempting, but forcing people into therapy who aren’t dysfunctional can itself cause dysfunction.

I am referring to the emotional equivalent to scraping your knee. Those situations wouldn’t require the emergency room or physical therapy. However, when a court orders therapy left, right, and center, is making something that can help a lot of people into a hammer and every potential problem a nail.

You may say, “Well, even if the only benefit that therapy provides is a place to voice your problems, it is still better than nothing.” and you would be wrong. What if a child is handling the divorce well and putting him or her in therapy makes the child falsely feel he or she is being treated for a non-existent problem? Money wasted on needless therapy could leave one unable to pay for other needs in other aspects of one’s life and the life of one’s children.

If you are an aggressive and abusive husband or an emotionally abusive and cheating wife and your children take issue with that, it’s your fault. Therapy isn’t glue to keep your family together. You can’t expect someone to keep a ship afloat if you are constantly drilling holes in the hull. Sometimes you really are the problem and could benefit from facing and fixing your issues. When courts default to ordering therapy as a catch-all cure-all, they’re phoning it in. No one benefits from that. If you’re afraid to oppose therapy because you’re afraid you’ll be labeled anti-child or anti-caring, don’t be. If the court can’t make a cogent case that therapy is truly necessary or clearly warranted, have the gumption and courage to object. If you don’t, then you have no one to blame but yourself, if needless knee-jerk therapy is ordered in your case

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

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2022 UT App 15 – Miller v. DaSilva – protective order objections

2022 UT App 15 – Miller v. DaSilva

http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Miller v. Dasilva20220203_20200719_15.pdf

THE UTAH COURT OF APPEALS

LISA M. MILLER,
Appellant,
v.
AMY ELIZABETH DASILVA,
Appellee.

Opinion

No. 20200719-CA

Filed February 3, 2022

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 204904364

Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant

Amy Elizabeth Dasilva, Appellee Pro Se

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

HAGEN, Judge:

¶1        A final judgment on a petition for a cohabitant abuse protective order cannot be entered based on a commissioner’s recommendation until the parties are afforded their statutory right to object. If a timely objection is filed, the objecting party is entitled to a hearing before the district court. In this case, once the commissioner recommended that the protective order be denied and the case dismissed, a final order was immediately entered and the petitioner’s timely objection was subsequently denied without a hearing. Because a final judgment was entered before the time for filing an objection had passed and without holding a hearing on the objection, we vacate the final judgment and remand to the district court to hold the required hearing.

BACKGROUND

¶2        Lisa Miller petitioned the district court for a cohabitant abuse protective order against her former friend and tenant, Amy Dasilva. A temporary protective order was issued, and a hearing was scheduled before a commissioner. At the conclusion of the hearing, the commissioner made the following findings:

I cannot find that there is sufficient evidence to support a finding that Ms. Da[s]ilva has been stalking Ms. Miller. And I cannot find a fear of ongoing physical harm.[1] And, therefore, I am going to respectfully dismiss the protective order.

A minute entry reflected that the “Commissioner recommends” that the petition “be DENIED and this case be dismissed” because “[t]he evidence does not support the entry of a protective order.”

¶3        That same day, at the direction of a district court judge, the court clerk entered a final order that stated: “This case is dismissed. Any protective orders issued are no longer valid.”

¶4        Miller filed a timely objection to the commissioner’s recommendation, requesting an evidentiary hearing before the district court pursuant to rule 108 of the Utah Rules of Civil Procedure. The next day, the district court denied that objection on the grounds that “dismissal of a protective order . . . is not a matter that is heard by the District Court Judges under Rule 108 as it is not a recommendation of the Commissioner, but rather a final decision.”

¶5        Miller filed a timely notice of appeal.

ISSUE AND STANDARD OF REVIEW

¶6        The dispositive issue before us is whether, under Utah Code section 78B-7-604(1)(f), the district court was permitted to immediately dismiss the case based on the commissioner’s recommendation and thereafter deny Miller’s objection and request for a hearing. “The proper interpretation and application of a statute is a question of law, and we afford no deference to the trial court in reviewing its interpretation.” Patole v. Marksberry, 2014 UT App 131, ¶ 5, 329 P.3d 53 (cleaned up).

ANALYSIS

¶7        Under the Cohabitant Abuse Act, the court may issue a protective order without notice to the other party (an ex parte protective order) if it appears from the petition “that domestic abuse has occurred” or is substantially likely to occur. Utah Code Ann. § 78B-7-603(1)(a) (LexisNexis Supp. 2020). If the court issues an ex parte protective order, it must schedule a hearing and provide notice to the respondent. Id. § 78B-7-604(1)(a). After notice and a hearing, the court may issue a cohabitant abuse protective order, which is effective until further order of the court. Id. § 78B-7-604(1)(e). If such an order is not issued, the ex parte protective order expires unless extended by the court. Id. § 78B-7-604(1)(b).

¶8 A commissioner may conduct the required hearing in cohabitant abuse cases and “[m]ake recommendations to the court.” Utah R. Jud. Admin. 6-401(1)–(2)(D). If the hearing takes place before a commissioner, “either the petitioner or respondent may file an objection within 10 days after the day on which the recommended order [is issued by the commissioner] and the assigned judge shall hold a hearing within 20 days after the day on which the objection is filed.”[2] Utah Code Ann. § 78B-7­604(1)(f).

¶9        Here, the district court denied Miller’s objection to the commissioner’s recommendation without holding a hearing. Miller argues this was a “violation of the mandate in Utah Code Ann. § 78B-7-604(1)(f).” We agree.

¶10 In denying Miller’s objection, the court ruled that “dismissal of a protective order” is not a matter that can be heard by the district court under rule 108 because “it is not a recommendation of the commissioner, but rather a final decision.” Because commissioners are prohibited from making “final adjudications,” Utah R. Jud. Admin. 6-401(4)(A), we assume that the district court was referring not to the commissioner’s recommendation, but to the order dismissing the case entered at the direction of a district court judge immediately after the hearing before the commissioner. Even so, the rule expressly provides that “[a] judge’s counter-signature on the commissioner’s recommendation does not affect the review of an objection.” Utah R. Civ. P. 108(a). Once Miller filed a timely objection to the commissioner’s recommendation and a request for hearing, the district court was statutorily required to hold a hearing within twenty days. See Utah Code Ann. § 78B-7­-604(1)(f). The district court erred by denying the objection without holding such a hearing.

CONCLUSION

¶11 The district court did not have authority to enter a final order dismissing this case before the time for filing an objection to the commissioner’s recommendation had expired. Because Miller filed a timely objection and request for hearing, she was entitled to a hearing before the district court. Accordingly, we vacate the final judgment, reverse the district court’s order denying the objection, and remand for the district court to hold the hearing required by statute.

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

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Do you want to know your judge and/or commissioner? View their bench books.

You’ve filed for divorce or had a divorce case filed against you. For most people, this is their first contact with the legal system. This is new and unknown, and so it’s frightening. The best (and first) antidote to the fear is becoming informed and knowledgeable about what you’re in for.

A good place to start is knowing about your divorce case’s judge and/or commissioner. Many judges and commissioners have a profile in the “Judge’s Bench Book,” which is provided by the Litigation Section of the Utah State Bar:

http://litigation.utahbar.org/benchbooks.html

The Judges’ Benchbook provides information on both trial judges and domestic relations commissioners who have agreed to provide information about how they approach a case and how they like to see a case proceed. You and your attorney can learn how to present your case in the way your judge and commissioner prefer. You can also learn what behaviors and practices to avoid.

So read the profiles on your judge and commissioner in the Bench Book. Tell your attorney about it too (not every attorney knows about the Bench Book). Get to know your judge and commissioner better so that you can work with them better and thus improve your chances for success.

The Litigation Section’s web page features other useful resources in addition to the Bench Book, so after you read the Bench Book profiles for your judge and commissioner, spend a little more time checking out those other resources too. A few you might find most useful include:

http://litigation.utahbar.org/50_tips.html

  • a list of 50 important tips for those who have never been to court before and that you would be wise to know before you appear in court

http://litigation.utahbar.org/assets/lawyers_write_persuasive.pdf

  • an article about what judges and commissioners really want to know (and really pay attention to) in the written arguments

http://litigation.utahbar.org/helpful-resources.html#Other

  • you can find links to the Utah rules of Civil Procedure, rules of Evidence, and other information here

http://litigation.utahbar.org/practice_pointers.html

  • a little “inside knowledge” about how the courts work that you’d be wise to review

https://www.utahbar.org/public-services/

  • this page can help you find a lawyer, find legal clinics, available pro bono assistance, and other public services provided by the Utah State Bar

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

How can I prepare myself mentally for divorce?

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Marijuana and Child Custody Still Don’t Mix in Utah, You Fools! Ignore This at Your Peril!

No matter what you’re told, marijuana use is STILL ILLEGAL in this state. Illegal use of street drugs, including but not limited to marijuana, can and surely will be used against you in a child custody dispute.

And you can’t magically make current (i.e., illegal) use of marijuana legal once medical marijuana use becomes legal in July of 2019. If you use of marijuana now, IT’S ILLEGAL NOW.

If you are a parent and you’re going through a child custody battle, DON’T SMOKE OR OTHERWISE CONSUME WEED!

It does not matter if you ate a marijuana cookie in Colorado or sucked on a marijuana lollipop in Las Vegas. If you have marijuana in your system in Utah, you’re breaking the law.

It does not matter:

  • if you claim that you need weed to ease the pain of cancer or any other physical affliction;
  • if you claim that you need weed to manage your mental illness; or
  • if you claim you that can’t afford prescription medication.

It does not matter what excuses you try to get the court to swallow; illegal use of street drugs, including but not limited to marijuana, can and surely will be used against you in a child custody dispute.

Don’t believe me? Disagree with me? IT DOESN’T MATTER!

MARIJUANA IS ILLEGAL IN UTAH, STILL.

Recreational use of marijuana will still be illegal even after the medical marijuana use exceptions become law.

The solution?

DON’T USE WEED ILLEGALLY! Duh! Don’t let weed come between you and your children. I can’t believe how much I have to fight over this with parents who use weed. It’s not, not nuanced, not up for debate. Use weed and you will be hurt in child custody matters, period.

(And to those naive souls among you who believe that once you have that medical marijuana card you’ll be in the clear, remember you heard it here first (you have been warned): it’s going to take a while before most judges and commissioners in this state will believe that smoking dope, legally or not, doesn’t make you a lousy parent. If you think that having that medical marijuana card means marijuana can’t become an issue in your child custody battle, THINK AGAIN. Be careful with marijuana and child custody).

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

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