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Tag: disability

Is There A Better Way To Conduct Court Proceedings?

A better way to conduct court proceedings came along (a long time ago): remote appearances.  You read that correctly: the courts in Utah can accommodate appearances by remote video conference. If you are disabled, don’t have access to transportation, have little kids at home you cannot leave behind, etc., you have an alternative to appearing personally in court. That stated, you often have to make a case for appearing remotely.

Some commissioners and judges act as though appearing remotely for court proceedings is unnatural, some kind of sin against jurisprudence. We clearly don’t need to appear personally in court anymore. And remote appearance technology is only getting better and more accessible. Luddites have lost this battle.

So what’s with the policy of requiring those who wish to appear remotely to file a motion for leave to do so (that means preparing, filing, and serving a motion requesting leave/permission to appear remotely, preparing, filing, and serving a request to submit the motion to the court for decision, and preparing, filing, and serving a proposed order on that motion for the court to sign)? Why create all that plainly pointless work for lawyers and for court personnel? Why not adopt a policy of permitting remote appearance upon filing a simple request with the court that will be automatically granted unless the court makes cogent findings that appearing physically in the courtroom is necessary and explaining why?

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

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For divorced parents: why isn’t your custody award 50/50?

For divorced parents: why isn’t your custody award 50/50?

Concisely (and in no particular order):

  1. sometimes a parent’s job, physical or mental/emotional disabilities, misconduct (like domestic violence, child abuse, or substance abuse), poverty, or distance from the other parent’s residence prevents him or her from exercising joint equal (50/50) custody, even though the parent is otherwise a loving, caring, and fit parent.
    • sometimes a child is nursing and thus the exercise of joint equal custody is a practicable impossibility.
  2. sometimes a parent who could exercise 50/50 custody may not want to exercise joint equal (50/50) custody. It’s rare, but it happens.
  3. sometimes a parent could exercise 50/50 custody, but the children vehemently and rebelliously oppose it. It’s rare, but it happens.
  4. sometimes, even though the parent wants it and is worthy of 50/50 custody, the other spouse and co-parent is evil and does everything in his or her power to depict that parent as unworthy of joint equal (50/50) custody in a campaign to ensure that 50/50 custody is not awarded. This doesn’t happen all the time, but happens quite frequently (more than most people would imagine).
    • sometimes, when a parent is dealing with a malicious parent, even 50/50 custody could be awarded, the innocent parent agrees to less than 50/50 to spare the children and/or the innocent future haranguing over and sabotage of the custody award. Some parents make it abundantly clear that if 50/50 custody is awarded that he/she will make everyone from the parent to the children to the court regret it.
  5. sadly, some courts believe that 50/50 cannot work, that 50/50 causes or exacerbates inter-parental disputes to the detriment of the children, and so the court awards less than 50/50 custody believing (too often falsely believing) that less than 50/50 is for the benefit of the children. Actually, the science shows just the opposite to be true, that 50/50 custody has the effect of reducing the amount and severity of inter-parental conflict.
  6. sometimes, even though a father wants and is worthy of 50/50 custody, the judge has a bias against awarding it. For some judges it’s a belief that men simply should not or cannot be entrusted with 50/50 custody, that “the only reason the father wants 50/50 custody is because it reduces his child support obligation,” that women are “born nurturers,” or that the children, though not infants, are still too young to spend time equally in the care and custody of both parents. Some judges take the position that if the mother has been, up to the point of separation and divorce, the children’s “primary caregiver” that she must remain their primary caregiver, even though the divorce will necessitate that she get a job and no longer function as primary caregiver.
    • Although men/fathers are being treated better when they seek 50/50 custody than ever before, there is still obvious discrimination generally against fathers who can clearly exercise and who and want and who seek 50/50 custody.

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

https://www.quora.com/For-divorced-parents-with-nearly-equal-parenting-time-what-was-the-reason-justification-s-for-it-not-being-equal/answer/Eric-Johnson-311

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Is there any way I can reduce child support?

In Utah (where I practice divorce and family law), yes, there are many possible ways to reduce child support. They may not be applicable to every child support payor, but there are ways:

  1. If you can persuade the court that you do not earn and cannot earn in the future the amount of money upon which your current child support obligation is based, then child support can be reduced (that may be cold comfort, however, given that the reason for a reduced child support obligation is your reduced income);
  2. Become disabled. This is kind of a corollary to way #1, in that if you become disabled that matters to the court to the extent your disability renders you unable to earn the amount of money upon which your current child support obligation is based.
  3. If you can persuade the court that the child support payee is now earning (and will likely continue to earn in the future) more money than the amount of money upon which your current child support obligation is based, then child support can be reduced;
  4. Other ways you can get child support reduced:
    • If custody of the child(ren) changes from the other parent to you. Obviously, you shouldn’t be paying child support to the noncustodial parent;
    • Material changes in the relative wealth or assets of the parties. If you are obligated to pay child support on the meager $2,400 you make per month, but your ex-wife or ex-husband is pulling down $20,000 take home pay per month, you could likely argue that you need all or most of the $2,400 for your own support in light of the fact that your ex has more than enough money to cover all the children’s financial support needs;
    • Material changes in the employment potential and ability of a parent to earn (if your ex has, since the child support order was issued, completed medical school or a PhD program or just obtained a Commercial Truck Driver license, etc.);
    • Material changes in the legal responsibilities of either parent for the support of others (for example: you have to take care of a parent or sibling or spouse or after-born child whose health or medical needs require you to quit or limit your employment for the sake of providing the care).

See Utah Code § 78B-12-210(9)

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

https://www.quora.com/Is-there-anyway-I-can-reduce-child-support/answer/Eric-Johnson-311

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Which lawsuit judgments can be considered marital property?

When lawsuit judgments may or may not be marital property: lessons from Utah appellate case law

In the Utah divorce case of Andersen v. Andersen, 379 P.3d 933 (Utah Court of Appeals 2016), the husband appealed the trial court’s denial of his claim that the settlement proceeds he had received from city in civil rights lawsuit were marital rather than separate property.

Did the Utah Court of Appeals agree?

Let’s read a summary of the case and then before I tell you the decision, reach your own conclusions first. The paragraph notations in the summary below are references to the paragraph numbers in the Court of Appeals’ decision.

¶5 In March 2015, the trial court held a two-day bench trial. With regard to Husband’s income and child support, the court noted that it had “great difficulty in attributing full candor to [Husband] on financial matters.”

¶7 In distributing the parties’ marital property, the trial court included $130,000 that Husband received in a settlement from Riverton City stemming from a civil suit alleging the city violated the Fair Housing Act. Husband argued the settlement proceeds were separate property because they were received as the result of a personal injury. To support his contentions, Husband provided a copy of his amended complaint (the Amended Complaint) and a settlement agreement (the Settlement Agreement).

¶8 The trial court ultimately concluded the settlement proceeds were marital property because the “complaint sought only damages and sought compensation for lost rents and costs and attorney fees for bringing the action” and therefore determined that Wife was entitled to a portion of the proceeds.

¶16 Husband argues “the court erred in determining factually and legally that the settlement from the civil rights lawsuit was marital property.” He argues it was legal error not to conclude that the settlement was for a personal injury. He further asserts “the court’s determination that absolutely no part of the settlement was to compensate for personal injury is unsupported by any facts or findings.” Finally, Husband argues the trial court “erred in deciding not to hear testimony from [his attorney in the civil rights case] about the nature of the settlement.”

¶17 “There is no fixed formula upon which to determine a division of properties in a divorce action….” Naranjo v. Naranjo, 751 P.2d 1144, 1146 (Utah Ct. App. 1988). Accordingly, “[w]e afford the trial court considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity.” Bradford v. Bradford, 1999 UT App 373, ¶ 25, 993 P.2d 887 (citation and internal quotation marks omitted). Thus, “changes will be made in a trial court’s property division determination in a divorce action only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.” Id. (citation and internal quotation marks omitted).

¶18 “In addressing the distribution of property between divorcing spouses, the trial court must first determine whether the assets in dispute are marital or separate property.” Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (citing Dahl v. Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566). “Marital property is ordinarily all property acquired during the marriage … whenever obtained and from whatever source derived.” Id. (omission in original) (citation and internal quotation marks omitted); see also Gardner v. Gardner, 748 P.2d 1076, 1078–79 (Utah 1988) (explaining that “marital property encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived” (citation and internal *938 quotation marks omitted)). By contrast, “separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.” Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (citation and internal quotation marks omitted).

¶19 Here, relying on Husband’s testimony, the Amended Complaint, and the Settlement Agreement, the court determined that Husband’s compensation was marital property. Specifically, it concluded,

The First Amended Complaint does not mention personal injury. The Settlement Agreement does not use the words “personal injury” anywhere in the document. The allegations included injuries that could be considered personal, such as an arrest, but the settlement did not describe whether the payment was based solely on the Fair Housing Act violations or other aspects of the litigation. The court cannot guess the payment amount was selected because of personal injury, again no claims being directly styled personal injury. The complaint sought only damages and sought compensation for lost rents and costs and attorney fees for bringing the action.

The trial court declined to find that the settlement was for a personal injury. But even if we assume it erred by failing to conclude that violations of the Fair Housing Act are not considered personal injuries, we are not convinced the court erred when it determined the settlement was marital property.

¶20 This court [i.e., the Utah Court of Appeals] has explained that compensation for a personal injury can be either separate property or marital property, depending on the nature of the damages. Naranjo, 751 P.2d at 1148. Specifically, “amounts received as compensation for pain, suffering, disfigurement, disability, or other personal debilitation are generally found to be the personal property of the injured spouse in divorce actions.” Id.; see also Izatt v. Izatt, 627 P.2d 49, 51 (Utah 1981) (determining that a wife’s personal injury compensation related to a medical malpractice suit that caused her to have two cardiac arrests was her personal property). But “money realized as compensation for lost wages and medical expenses, which diminish the marital estate, are considered to be marital property.” Naranjo, 751 P.2d at 1148; see also Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329, 331–32 (Ariz. Ct. App. 1980) (concluding that compensation awarded to an injured employee for lost wages and medical expenses, and not pain and suffering, was marital property).

¶21 So, even assuming Husband’s civil rights action against Riverton City equated to a personal injury claim, whether Husband’s claims were for personal injuries is not determinative of whether the compensation for those claims constitutes marital or separate property. Rather, the court must look to the nature of the personal injuries to determine whether the compensation is for injuries usually considered so personal as to render it separate property.

¶22 In Naranjo v. Naranjo, 751 P.2d 1144 (Utah Ct. App. 1988), this court affirmed the trial court’s determination that the defendant’s compensation for lost wages and medical costs for a knee injury incurred in an industrial accident was marital property. Id. at 1146, 1148–49. The defendant injured his knee during his marriage to the plaintiff. The injury prevented the defendant from working for nine months and required numerous surgeries. Id. at 1146. At trial, he argued the compensation was not marital property and that “he planned to use the award proceeds to meet his future medical expenses and to offset his potential reduced earning capacity.” Id. The defendant further explained that he was unable to articulate how much of the compensation was for pain and suffering “because the judgment was awarded in Colorado, and, according to Colorado procedure, the jury verdict was not broken into general or special damages.” Id. at 1148. Nevertheless, the trial court found that the defendant had failed to meet his burden of showing the amount of the award attributable to pain and suffering. Id. at 1146.

¶23 Like the defendant in Naranjo, Husband argues the settlement was separate property, not marital. But Husband has failed to set forth any evidence to show that any amount of the settlement was for pain and suffering. The evidence Husband offered regarding the settlement was his own testimony, the Amended Complaint, and the Settlement Agreement. At most the Amended Complaint alleged Husband was harassed by a city official and was arrested. Husband’s prayer for relief in the Amended Complaint only requested compensation for “lost rental income,” “start-up costs lost,” “[r]easonable [a]ttorney fees,” and civil penalties and punitive damages “in an amount sufficient to punish” the City for violating the Fair Housing Act. At no point did it suggest Husband sought compensation for pain and suffering, nor does it allege the City violated any law that would warrant special damages that could be considered so personal as to render them separate property. Furthermore, as the trial court explained, the Settlement Agreement “did not describe whether the payment was based solely on the Fair Housing Act violation or other aspects of the litigation.”

¶29 We therefore conclude the trial court did not err when it determined that the settlement proceeds were marital property. Further, because he failed to actually object to the court not hearing the attorney’s testimony, Husband has not preserved the issue for appeal. In any event, he has not met his burden of proof to demonstrate that not hearing the attorney’s testimony was a harmful error.

CONCLUSION

¶33 Husband has failed to meet his burden of demonstrating the court erred in determining the settlement proceeds from Husband’s suit against Riverton City were marital property. Although a suit alleging violations of civil rights may be characterized as a personal injury lawsuit, our court has explained that proceeds from a personal injury lawsuit may be either separate or marital property, depending on the nature of the relief sought. See Naranjo v. Naranjo, 751 P.2d 1144, 1146 (Utah Ct. App. 1988). Thus, because Husband sought compensation for lost wages and rents—costs usually defined as marital—we cannot agree with Husband that the district court erred.

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

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What kind of lawsuit judgments are marital property?

When lawsuit judgments may or may not be marital property: lessons from Utah appellate case law

In the Utah divorce case of Andersen v. Andersen, 379 P.3d 933 (Utah Court of Appeals 2016), the husband appealed the trial court’s denial of his claim that the settlement proceeds he had received from city in civil rights lawsuit were marital rather than separate property.

Did the Utah Court of Appeals agree?

Let’s read a summary of the case and then before I tell you the decision, reach your own conclusions first. The paragraph notations in the summary below are references to the paragraph numbers in the Court of Appeals’ decision.

¶5 In March 2015, the trial court held a two-day bench trial. With regard to Husband’s income and child support, the court noted that it had “great difficulty in attributing full candor to [Husband] on financial matters.”

¶7 In distributing the parties’ marital property, the trial court included $130,000 that Husband received in a settlement from Riverton City stemming from a civil suit alleging the city violated the Fair Housing Act. Husband argued the settlement proceeds were separate property because they were received as the result of a personal injury. To support his contentions, Husband provided a copy of his amended complaint (the Amended Complaint) and a settlement agreement (the Settlement Agreement).

¶8 The trial court ultimately concluded the settlement proceeds were marital property because the “complaint sought only damages and sought compensation for lost rents and costs and attorney fees for bringing the action” and therefore determined that Wife was entitled to a portion of the proceeds.

¶16 Husband argues “the court erred in determining factually and legally that the settlement from the civil rights lawsuit was marital property.” He argues it was legal error not to conclude that the settlement was for a personal injury. He further asserts “the court’s determination that absolutely no part of the settlement was to compensate for personal injury is unsupported by any facts or findings.” Finally, Husband argues the trial court “erred in deciding not to hear testimony from [his attorney in the civil rights case] about the nature of the settlement.”

¶17 “There is no fixed formula upon which to determine a division of properties in a divorce action….” Naranjo v. Naranjo, 751 P.2d 1144, 1146 (Utah Ct. App. 1988). Accordingly, “[w]e afford the trial court considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity.” Bradford v. Bradford, 1999 UT App 373, ¶ 25, 993 P.2d 887 (citation and internal quotation marks omitted). Thus, “changes will be made in a trial court’s property division determination in a divorce action only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.” Id. (citation and internal quotation marks omitted).

¶18 “In addressing the distribution of property between divorcing spouses, the trial court must first determine whether the assets in dispute are marital or separate property.” Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (citing Dahl v. Dahl, 2015 UT 23, ¶ 121, 345 P.3d 566). “Marital property is ordinarily all property acquired during the marriage … whenever obtained and from whatever source derived.” Id. (omission in original) (citation and internal quotation marks omitted); see also Gardner v. Gardner, 748 P.2d 1076, 1078–79 (Utah 1988) (explaining that “marital property encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived” (citation and internal *938 quotation marks omitted)). By contrast, “separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.” Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (citation and internal quotation marks omitted).

¶19 Here, relying on Husband’s testimony, the Amended Complaint, and the Settlement Agreement, the court determined that Husband’s compensation was marital property. Specifically, it concluded,

The First Amended Complaint does not mention personal injury. The Settlement Agreement does not use the words “personal injury” anywhere in the document. The allegations included injuries that could be considered personal, such as an arrest, but the settlement did not describe whether the payment was based solely on the Fair Housing Act violations or other aspects of the litigation. The court cannot guess the payment amount was selected because of personal injury, again no claims being directly styled personal injury. The complaint sought only damages and sought compensation for lost rents and costs and attorney fees for bringing the action.

The trial court declined to find that the settlement was for a personal injury. But even if we assume it erred by failing to conclude that violations of the Fair Housing Act are not considered personal injuries, we are not convinced the court erred when it determined the settlement was marital property.

¶20 This court [i.e., the Utah Court of Appeals] has explained that compensation for a personal injury can be either separate property or marital property, depending on the nature of the damages. Naranjo, 751 P.2d at 1148. Specifically, “amounts received as compensation for pain, suffering, disfigurement, disability, or other personal debilitation are generally found to be the personal property of the injured spouse in divorce actions.” Id.; see also Izatt v. Izatt, 627 P.2d 49, 51 (Utah 1981) (determining that a wife’s personal injury compensation related to a medical malpractice suit that caused her to have two cardiac arrests was her personal property). But “money realized as compensation for lost wages and medical expenses, which diminish the marital estate, are considered to be marital property.” Naranjo, 751 P.2d at 1148; see also Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329, 331–32 (Ariz. Ct. App. 1980) (concluding that compensation awarded to an injured employee for lost wages and medical expenses, and not pain and suffering, was marital property).

¶21 So, even assuming Husband’s civil rights action against Riverton City equated to a personal injury claim, whether Husband’s claims were for personal injuries is not determinative of whether the compensation for those claims constitutes marital or separate property. Rather, the court must look to the nature of the personal injuries to determine whether the compensation is for injuries usually considered so personal as to render it separate property.

¶22 In Naranjo v. Naranjo, 751 P.2d 1144 (Utah Ct. App. 1988), this court affirmed the trial court’s determination that the defendant’s compensation for lost wages and medical costs for a knee injury incurred in an industrial accident was marital property. Id. at 1146, 1148–49. The defendant injured his knee during his marriage to the plaintiff. The injury prevented the defendant from working for nine months and required numerous surgeries. Id. at 1146. At trial, he argued the compensation was not marital property and that “he planned to use the award proceeds to meet his future medical expenses and to offset his potential reduced earning capacity.” Id. The defendant further explained that he was unable to articulate how much of the compensation was for pain and suffering “because the judgment was awarded in Colorado, and, according to Colorado procedure, the jury verdict was not broken into general or special damages.” Id. at 1148. Nevertheless, the trial court found that the defendant had failed to meet his burden of showing the amount of the award attributable to pain and suffering. Id. at 1146.

¶23 Like the defendant in Naranjo, Husband argues the settlement was separate property, not marital. But Husband has failed to set forth any evidence to show that any amount of the settlement was for pain and suffering. The evidence Husband offered regarding the settlement was his own testimony, the Amended Complaint, and the Settlement Agreement. At most the Amended Complaint alleged Husband was harassed by a city official and was arrested. Husband’s prayer for relief in the Amended Complaint only requested compensation for “lost rental income,” “start-up costs lost,” “[r]easonable [a]ttorney fees,” and civil penalties and punitive damages “in an amount sufficient to punish” the City for violating the Fair Housing Act. At no point did it suggest Husband sought compensation for pain and suffering, nor does it allege the City violated any law that would warrant special damages that could be considered so personal as to render them separate property. Furthermore, as the trial court explained, the Settlement Agreement “did not describe whether the payment was based solely on the Fair Housing Act violation or other aspects of the litigation.”

¶29 We therefore conclude the trial court did not err when it determined that the settlement proceeds were marital property. Further, because he failed to actually object to the court not hearing the attorney’s testimony, Husband has not preserved the issue for appeal. In any event, he has not met his burden of proof to demonstrate that not hearing the attorney’s testimony was a harmful error.

CONCLUSION

¶33 Husband has failed to meet his burden of demonstrating the court erred in determining the settlement proceeds from Husband’s suit against Riverton City were marital property. Although a suit alleging violations of civil rights may be characterized as a personal injury lawsuit, our court has explained that proceeds from a personal injury lawsuit may be either separate or marital property, depending on the nature of the relief sought. See Naranjo v. Naranjo, 751 P.2d 1144, 1146 (Utah Ct. App. 1988). Thus, because Husband sought compensation for lost wages and rents—costs usually defined as marital—we cannot agree with Husband that the district court erred.

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

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Is a Disabled Parent Prohibited from Being Awarded Custody of a Child?

QUESTION: Could my dad get custody of my sister and me when he’s on disability/welfare? My mom has had sole custody since the divorce decree was first issued.

My mom is verbally, mentally, and sometimes physically abusive. Child protective services has been called, but the case was closed. I want to live with my dad. I’ve told Mom this and Mom says Dad would never get custody because he’s sick. My dad’s family is willing to help care for us. I’m 15 soon and old enough to choose.

ANSWER: See Utah Code § 30-3-10 (Custody of children in case of separation or divorce — Custody consideration), subsection 4:

(4)

(a) Except as provided in Subsection (4)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2[1], in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

(i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

(ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

—————–

[1] Utah Code § 57-21-2(10):

(a) “Disability” means a physical or mental impairment that substantially limits one or more of a person’s major life activities, including a person having a record of such an impairment or being regarded as having such an impairment.

(b) “Disability” does not include current illegal use of, or addiction to, any federally controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. Sec. 802.

 

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

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