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Tag: equity

Fair Treatment in Court by Braxton Mounteer, Legal Assistant.

The family law legal system likes to portray itself as a shining beacon of justice and equity, but I have seen first-hand that it is not. Whether it is opportunistic clients and their lawyers who will throw anything against the wall to see what sticks, or cowboy commissioners and judges who play fast and loose with the rules (and even make up their own), generally you will not get a fair shake (just a fair shake) unless you fight—and fight hard and extensively—for it.

Fight just to keep everyone honest? Really? Yes. Well, yes, in the sense that unless you don’t care about your own good character and subscribe to the “fight fire with fire” way of doing things.

If you have enough money, there is more than one lawyer out there that will take it and do and say basically whatever you want.

What about the commissioners and judges? Aren’t they motivated purely by upholding the law and the rules and dispensing justice impartially? Some are. Not all. It’s unpleasantly surprising to me how many domestic relations commissioners and judges indulge in pride, biases, apathy, and indolence.

If you know you’re innocent, if you know you’re a good person, that is rarely enough to ensure you’re treated fairly. What can you do if and when the deck is stacked against you because the opposing party is willing to lie, cheat, and steal his/her way to victory? You must fight with everything that you have. You must—if you can—produce overwhelming evidence that you are in the right (or the opposing side is in the wrong) if you are to have confidence that you will be treated fairly. That’s hard. That’s financially and emotionally exhausting. But there are no shortcuts.

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

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What Assumptions Can You Make About Someone Who Has Been Divorced Twice?

You can assume whatever you want about anyone or anything, but that does not mean your assumptions are accurate.

And there is this from Merriam-Webster: “Although presume and assume both mean “to take something as true,” “presume” implies more confidence or evidence backed reasoning. An “assumption” suggests there is little evidence supporting your guess.

People make assumptions all the time, often (but not always) to their detriment and the detriment of the people of whom they make assumptions. You know what they say about people who assume.

That stated, assumptions based upon sufficient evidence are not only reasonable but often warranted or even wholly justified. If you see someone turning red and then blue and appearing to be unable to breathe while making the sign of choking, you can assume he/she is choking. But it’s still an assumption. You didn’t see the would-be choking victim actually swallow anything, after all.

So, what can you safely assume about someone of whom you know nothing other than the fact that he/she has been divorced twice? In fairness to one contemplating making an assumption and to the person twice divorced:

  • It’s fair to wonder why someone has been divorced twice and whether the divorcee may not be “marriage material”—especially if you are contemplating marrying the twice-divorced person.

o   It’s fair to assume (assuming—see what I did there?—you want your marriage to last) that if you intend to marry the twice-divorced person, your marriage will have a lower chance of success than a marriage to someone who has never been divorced. Statistics indicate that in the U.S., just under 50% percent of first-time marriages end in divorce, while 65-67% of second marriages, and about 74% of third marriages end in divorce.

  • It’s unfair to assume that the divorce was the twice-divorced person’s fault either or both times. It’s fair to “wonder if”, but not to “assume that”.
  • It’s also fair to fair to “wonder if”, but not to “assume that”:

o   the twice-divorced person was the cause of one or both of the divorces and whether the divorcee has poor judgment in selecting spouses.

o   the twice-divorced person is either a sucker or someone who marries suckers.

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Is There a Primary Parent in Joint Custody in Utah Which Is Also Known as “Equal” or “50/50” Custody?

Utah, like many states, has struggled with the very concept of equal (“50/50”) custody of children for years. While progress has been made (especially in the past few years), we still struggle with it. Inexplicably, in my opinion.

For example, in Utah, we have § 30-3-35.2, entitled “Equal parent-time schedule.” It provides, in pertinent part: “(b) An order *under this section** shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.” (emphasis mine)

Why? A 50/50 schedule would naturally result in the children spending equal time with the parents because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.

So, you can see how this Code section applies to your question of whether there is a primary parent in a joint equal (50/50) custody award situation.

*But here’s a strange note: To be awarded equal physical custody does not require that it be awarded according to the provisions of Utah Code § 30-3-35.2. In the cases in which I am involved where the parents agree to equal custody, I specify in the settlement agreement and in the custody orders that each parent has the children in his/her care and custody an average of 182.5 overnights annually, and include an statement like the one I provided above explaining how that works (i.e., “because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.”)

Accordingly, in Utah the answer to the question of, “Is there a primary parent in an equal physical custody award case?,” is that it’s possible for one parent to have the children in his/her custody one more overnight more than the other parent, but such a situation is not mandatory. Parents who truly want a perfectly equal division of child custody can have it, if they ensure that the language of the custody order so provides.

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

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Lamb v. Lamb, 2024 UT App 16 – divorce, custody, business, home equity

2024 UT App 16

THE UTAH COURT OF APPEALS

JOSEPH EARL LAMB,

Appellee,

v.

SONYA ELIZABETH LAMB,

Appellant.

Opinion

No. 20210787-CA

Filed February 8, 2024

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 174904728

Mary Deiss Brown, Attorney for Appellant

Gregory G. Skordas, Gabriela Mena, and Allison R.

Librett, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was decided at a bench trial.[1] As relevant here, Joseph was awarded custody of their children, ownership of a family business, and half the equity of the marital home. Sonya now challenges the court’s custody determination and the award of the business. She also challenges the manner in which the court determined the equity in the marital home. We affirm the district court’s rulings in all aspects.

BACKGROUND[2]

¶2        Joseph and Sonya married in 2007 and separated in July 2017. We address separately each of the district court’s determinations with which Sonya takes issue.

The Custody of the Children

¶3        Joseph and Sonya have three children, all of whom were minors when they divorced in August 2021. In November 2017, at a hearing for temporary orders, Sonya’s counsel told the court that Sonya had been the children’s primary caregiver “until recently.” Sonya also admitted that she was arrested in July 2017 and was facing charges for possession and use of drugs, but she asserted that she had “taken responsibility,” had “stopped using drugs,” was “sober and more than capable of caring for the children and continuing on as their primary caregiver,” and had “been attending Narcotics Anonymous and Al-Anon meetings.” Sonya asserted that Joseph had a “serious drug addiction problem.” Joseph claimed that Sonya had vacated the marital home shortly before her arrest, and he revealed that he obtained a protective order against her. The court acknowledged the allegations both sides made against the other but noted that Joseph currently had the children in his care and was living in the marital home. The court then determined that Joseph should maintain “custody of the children on a temporary basis.”

¶4        Apparently, the children remained in the temporary custody of Joseph until the parties’ divorce trial, where the court received the testimony of a “reunification therapist” (Family Therapist), who had been hired by the parties after the custody evaluator had been “unable to perform an evaluation due to the children spending less than minimum time” with Sonya.

¶5        Based on the testimony of Family Therapist, which we recount when relevant in our analysis below, the court found that “unification” between Sonya and the two older children was “lacking” because of acrimonious relationships. The court noted that Family Therapist had testified that progress in reunification therapy would “influence what possible custody” Sonya might have in the future relative to the older children. The court determined that it was “in the best interest of the children that reunification therapy” continue to allow Sonya the opportunity “to reunify her relationship with the children.”

¶6        Accordingly, the court found that it was in the children’s best interest that Joseph be “awarded sole physical custody and final decision making authority,” with both parties being awarded joint legal custody. With regard to the youngest child, the court awarded supervised parent-time to Sonya one night a week. The court awarded Sonya no parent-time with the older two children. The court noted that supervised parent-time for Sonya would “be flexible” and might “increase after the current reunification issues” and Sonya’s “medical issues” were addressed. The court also stated that Sonya’s “non-use of cannabis” needed to be verified because marijuana use was “a contributing factor” that brought on her mental health episodes.

The Business

¶7        During their union, the parties were financially supported, at least in part, by a business that distributed supplies to gas stations. During the divorce proceedings, Joseph maintained that he was in the process of purchasing the business from his father but that he did not have the money to pay for it. Joseph explained that he drew a salary for his work with the business. In contrast, Sonya maintained that she and Joseph agreed to buy the business in 2010 and that they completed paying off the business in 2016. Sonya claimed that she and Joseph signed a document “to take over the business” but that she did “not have the document.” Sonya did produce a different document that explicitly stated the business was being sold only to Joseph.

¶8        The district court awarded the business to Joseph, along with all its debts and obligations. In addition, the court, apparently recognizing that the business was possibly still owned by Joseph’s father, ordered that any money Joseph borrowed against the marital home to purchase the business would “not be used to reduce the total equity in the home” so as to reduce Sonya’s share of the home’s value. In making this award to Joseph, the court was clear that it was basing its decision “on the testimony” provided by Joseph.

The Marital Home

¶9        Based on a Zillow estimate[3] provided by Sonya, the court determined the value of the marital home to be $998,659, but the equity in the home was reduced by mortgages and liens on the property. Joseph testified that three mortgages, totaling $402,000, were on the property.[4] And the home was additionally encumbered by eleven liens. Two of these liens, totaling $2,414, were attributed to Sonya and Joseph. The remaining nine, totaling $256,521, were tax liens and civil judgments incurred by the previous owner of the home.[5]

¶10      The court received evidence that when Joseph and Sonya purchased the home in November 2009, it was subject to some existing debt. Joseph testified as follows:

Counsel: “Was there anything particular about that purchase [of the home]?”

Joseph: “We didn’t have the credit or the means to get into a home at the time, so my brother is a real estate agent and he’s good friends with [the previous owner] and said, ‘Hey, this house is available. If you like it, I can probably get you into it.’ And so we took him up on that and (inaudible) that we had to take on (inaudible).”

Counsel: “So there were other debts on that house when you purchased it?”

Joseph: “Yes        I didn’t know about all of them at the time, but yes.”

Counsel: “What are those debts?”

Joseph: “There’s a lot of tax liens from [the previous owner] throughout the years. There’s a couple of (inaudible) from Sonya and I, medical bills that weren’t paid. . . .”

Counsel: “And have you paid off the tax liens? The liens on the house?”

Joseph: “No.”

Thus, in a somewhat unusual arrangement, the parties appear to have purchased the home subject to certain liabilities, even if they did not know the precise extent of those liabilities. Presumably, these liabilities would have been offset by a reduction in the purchase price, making the home more affordable.

¶11      Adding the mortgages and liens together for an amount of $660,935, the court determined that equity in the home was $337,724. The court ordered Joseph to pay Sonya $168,862 as her share of that equity.

¶12      Sonya appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Sonya identifies multiple ways in which she believes the district court erred. But “[f]or the sake of brevity,” we “consolidate these grounds” and “set out in the opinion only so much . . . as we deem necessary to a decision of the questions involved herein.” Patterick v. Carbon Water Conservancy Dist., 145 P.2d 503, 505 (Utah 1944), overruled on other grounds by Timpanogos Plan. & Water Mgmt. Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562 (Utah 1984).

¶14      Sonya first contends that the district court abused its discretion in making custody and parent-time decisions because it lacked sufficient information to make those decisions. “We review custody determinations deferentially, and so long as the district court’s discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Kingston v. Kingston, 2022 UT 43, ¶ 20, 532 P.3d 958 (cleaned up).

¶15      Sonya next contends that the district court’s findings were “entirely inadequate to explain” its reasoning for awarding ownership of the business to Joseph. “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.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (cleaned up).

¶16      Lastly, Sonya argues that the district court’s “procedures and decisions regarding the division of equity in the marital home were illogical and manifestly unjust.” “Determining and assigning values to marital property is a matter for the trial court, and an appellate court will not disturb those determinations absent a showing of clear abuse of discretion.” Mintz v. Mintz, 2023 UT App 17, ¶ 12, 525 P.3d 534 (cleaned up), cert. denied, 531 P.3d 730 (Utah 2023).

ANALYSIS

  1. A Note on Briefing

¶17      Sonya’s briefing is plagued by significant deficiencies and does not comply with the Utah Rules of Appellate Procedure for appropriate briefing. First, excluding the cases cited for the standards of review, Sonya cites only a single case in her opening brief, and she does so in a perfunctory fashion—making only a shallow attempt to explain its relevance to the issues. Sonya continues this trend in her reply brief, where she cites no cases at all. In this regard, she falls far short of appellate expectations. “A party may not simply point toward a pile of sand and expect the court to build a castle. In both district and appellate courts, the development of an argument is a party’s responsibility, not a judicial duty.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248; see also Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); id. R. 24(b)(3).

¶18      Second, in her statement of the case, Sonya fails to include a single citation to the record. This is in contravention of our clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of the case must include, with citations to the record: (A) the facts of the case, to the extent necessary to understand the issues presented for review; (B) the procedural history of the case, to the extent necessary to understand the issues presented for review; and (C) the disposition in the court or agency whose judgment or order is under review.” (emphasis added)). We note that Sonya somewhat more adequately cites the record in the argument section of her brief, but that is not what the Utah Rules of Appellate Procedure require, and by ignoring the rules to suit her briefing preferences, she does little to bolster judicial efficiency.[6]

¶19      We point out these deficiencies not to ridicule, disparage, or shame counsel, but to provide warning that future briefing of this nature will likely be deemed inadequate and that any arguments on the merits may not be substantively considered by this court. This court receives hundreds of briefs each year. They vary in quality and in their adherence to the rules. We recognize that members of the bar have a lot on their plates and occasionally miss a typo or overlook a citation. But wholesale disregard of briefing rules is quite beyond the pale and can have unwelcome consequences for attorneys (and their clients) who choose this risky path. See Ostler v. Department of Public Safety, 2022 UT App 6, ¶ 27, 505 P.3d 1119 (“We . . . retain discretion to not address an argument that is inadequately briefed.” (cleaned up)); accord State v. Schwenke, 2007 UT App 354U, para. 2; State v. Garner, 2002 UT App 234, ¶¶ 8–13, 52 P.3d 467. And we hasten to point out that the risk of ignoring briefing requirements should come as no surprise to any attorney in Utah owing to our multiple references to the issue over the years. See Trees v. Lewis, 738 P.2d 612, 612–13 (Utah 1987) (stating that the merits of a dispute need not be reached if an appellant “has not supported the facts set forth in [a] brief with citations to the record” as required by rule 24(a)(6) of the Utah Rules of Appellate Procedure); State v. Price, 827 P.2d 247, 249 (Utah Ct. App. 1992) (“We have routinely refused to consider arguments which do not include a statement of the facts properly supported by citations to the record.”); Koulis v. Standard Oil Co. of Cal., 746 P.2d 1182, 1184 (Utah Ct. App. 1987) (“If a party fails to make a concise statement of the facts and citation of the pages in the record where those facts are supported, the court will assume the correctness of the judgment below.”). That we have exercised our discretion to address the merits of the issues on appeal here should not be taken as an imprimatur sanctioning inadequate briefing but as a conduit to raise awareness of the risk of ignoring the rules.

¶20 We take this occasion to recall the advice offered by our supreme court several decades ago:

If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

State v. Thomas, 1999 UT 2, ¶ 13, 974 P.2d 269 (cleaned up). With that, we remind counsel of their responsibility to assist the judiciary in advancing jurisprudence through diligent advocacy, adherence to our rules, and competent representation.

  1. Custody and Parent-Time
  2. Disclosure

¶21      Sonya argues that the district court erred in admitting Family Therapist’s testimony when Joseph had not timely disclosed him as an expert witness pursuant to rule 26 of the Utah Rules of Civil Procedure, which requires disclosure “within 14 days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i). Sonya’s briefing on this point leaves much to be desired. She entirely ignores what happened at trial, instead substituting her own retrospective take on what she believes should have happened without attempting to explain why her timeliness argument should now be considered. Providing some persuasive caselaw—which may or may not exist—would have gone far to support her argument. But like the rest of her briefing, this part is inadequate.

¶22      A review of the record shows that Sonya did not object to Family Therapist’s testimony on the grounds of untimely disclosure. Instead, Sonya argued that Family Therapist had “far exceeded any kind of mandate,” that he had not signed confidentiality waivers, and that allowing his testimony created patient privacy and ethical violations. In her objection at trial, rule 26 was mentioned only in passing and not in a way that would suggest she was objecting on timeliness grounds. It certainly would not have been clear to opposing counsel that a rule 26 timeliness issue was being raised such that he would have known to argue a harmlessness or good-cause defense for the failure to disclose, which would have been an easy argument to make given that both Joseph and Sonya had jointly retained Family Therapist and Sonya knew about Family Therapist several years before trial. And it would not have been clear to the district court that it was being asked to rule on a timeliness-based objection. For these reasons, Sonya did not preserve any such objection for appellate review. See State v. Centeno, 2023 UT 22, ¶ 57, 537 P.3d 232 (“It is well established that we will not address the merits of an unpreserved issue absent a showing that an exception to the preservation rule applies.”).

  1. Hearsay

¶23 Sonya additionally argues that Family Therapist’s testimony, insofar as he testified as a fact witness, “was inadmissible hearsay and based entirely on his conversations with the parties and their children as their reunification therapist.” Sonya’s hearsay argument is difficult to follow and poorly briefed. Instead of analysis in support of her hearsay argument, she provides scant and unsupported assertions.

¶24      Sonya objected below to Family Therapist’s testimony on the grounds that it was hearsay. But the court ruled that it was not hearsay, concluding that Family Therapist’s testimony was not offered “for the truth of the matter asserted.” Rather, the court ruled that the “focus of [the] questioning” was, first, to allow the court “to find out how [the children were] doing, if they’re capable of going forward” and, second, to identify the present “obstacles” to “structuring visitation with [Sonya].” On appeal, Sonya makes no attempt to engage with the court’s reasoning, instead limiting her analysis to a blanket assertion that “it [was] evident” Family Therapist was “allowed to testify as an expert, offering hearsay, opinions and recommendations in [a] manner that simply is not permitted by the Rules of Civil Procedure.” Such superficial and undeveloped argument is simply not persuasive, most especially because it does not address the alleged error in the court’s reasoning. It is well settled that appellants who fail to “address the district court’s reasoning” also fail to carry their “burden of persuasion on appeal.” See Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428 P.3d 12; see also Spencer v. Spencer, 2023 UT App 1, ¶ 27, 524 P.3d 165; Bad Ass Coffee Co. of Haw. v. Royal Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624.

  1. Custody Factors

¶25 Sonya next argues that the court did not address the custody factors outlined in section 30-3-10 of the Utah Code, making its custody findings insufficient. More specifically, Sonya argues that the court’s factual findings were deficient due to the court’s reliance on the testimony of Family Therapist in making those findings.

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

¶27      Here, the factors about which the court received significant evidence concerned Sonya’s ability to function as a parent, which the court received as testimony from Family Therapist. As we have explained above, Sonya’s challenges to the admissibility of Family Therapist’s testimony fail, and we accordingly conclude that the district court acted well within its discretion in relying on his testimony.

¶28      Regarding Sonya’s ability to parent the two older children, Family Therapist testified that they were “very angry” with Sonya and “announced that they would never see or talk to her again.” Their anger was due to their religious sensibilities and Sonya’s announcement that she was pregnant by a man other than their father during the pendency of the divorce.

¶29      With regard to Sonya’s parenting, Family Therapist stated that the youngest child was very frightened after “his last visit with [Sonya] when she was struggling psychiatrically.” Moreover, Family Therapist also testified the youngest child was beginning to see himself as Sonya’s “partner,” resulting in the child “becoming parentified.”[7]

¶30 Family Therapist further indicated that while he was unaware of Sonya’s “current condition or functioning,” Sonya had been “hospitalized and diagnosed with some issues.” He asserted that “safety” needed to be addressed, meaning that Sonya required a psychiatric evaluation to demonstrate that her “situation” was “under control.” He also indicated that Sonya needed to work on “being forthright with medications.” Sonya, by her own admission, had “suffered an isolated manic episode” related to bipolar disorder and “called the police for assistance” because she was suffering from “visual and auditory hallucinations.”

¶31    Sonya’s briefing on this point misses the mark because it entirely relies on the assumption that Family Therapist’s testimony was inadmissible, an assumption we conclude is without foundation. See supra ¶¶ 21–24. She does not explain why, in light of Family Therapist’s admissible testimony, the court’s consideration of the statutory custody factors was insufficient. Sonya’s briefing makes no attempt to explain why the court is not allowed to rely on the evidence it receives when making custody decisions.

¶32 Moreover, Sonya does not identify any “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, as to the other factors in section 30-3-10 that the court received but left unaddressed. Instead, her briefing advances an argument that is entirely conclusory and unsupported by record citation or legal authority:

Although § 30-3-10 gives broad discretion to the court as to the relevance and appropriate weight to give each factor, the district court in this case simply did not have any information that would allow it to make findings as to most of the statutory factors. For instance, the district court did not know who the primary caretaker of the children during the marriage was. The district court did not know anything about the marriage. The district court would not permit any testimony relevant to Joseph’s moral character or his history of drug abuse and sexual proclivities. The Court would not allow any testimony as to Joseph’s inability and unwillingness to co-parent with Sonya. At the end of the day, the Court simply sidestepped its responsibility as an independent factfinder and deferred to [Family Therapist].

This might be a good argument if Sonya had supported it with citations to the record and to legal authority. As this argument stands before us, we are unable to verify what it asserts. But we suspect that Sonya might be indulging in hyperbole here. Indeed, Sonya’s assertion that “the district court did not know anything about the marriage” is patently false. Our review of the record indicates that the court, in fact, knew quite a bit about the marriage, such as its financial situation, issues related to the children, and the problems that led to its demise, to name just a few topics within its familiarity. And with regard to Joseph’s alleged use of illegal drugs, we found only one instance (subsequently echoed by Sonya’s attorney) in the record where Sonya asserted before the district court that Joseph had a “cocaine habit.” But the district court was free to “disregard such testimony if it [found] the evidence self-serving and not credible,” since the factfinder “is in the best position to judge the credibility of witnesses.” See Clark v. Clark, 2023 UT App 111, ¶ 37, 537 P.3d 633 (cleaned up). An isolated allegation made in passing certainly does not amount to “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, especially given the district court’s role as the factfinder to judge the credibility of witnesses, see Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751. And as to the other statutory custody factors that Sonya asserts the court left unaddressed, she has not pointed us to any significant evidence that the court received with respect to those factors.

¶33      Thus, unlike the situation in Twitchell, where we concluded “that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against [the mother], her alleged neglect of [the child,] and her moral character, as well as the effect that evidence had on its best-interest analysis,” see 2022 UT 49, ¶¶ 22–23, 25, here there simply wasn’t significant evidence presented regarding section 30-3-10’s other custody factors. This lack of evidence—insofar as there was a lack—was not the court’s fault; it was Sonya’s fault for not presenting it. After all, a court cannot be faulted for failing to consider evidence that was not presented to it. In contrast, given the substantial evidence the court did receive about the serious mental health issues Sonya faced, we conclude that the district court did not abuse its discretion in its consideration of the statutory factors when determining that awarding physical custody to Joseph was in the best interest of the children.

¶34 In sum, Sonya has failed to show that the district court abused its discretion in accepting and relying on the testimony of Family Therapist in making custody determinations or that the district court did not properly address the statutory factors in determining custody of the children.

III. Ownership of the Business

¶35      Both parties agree that the district court concluded that the business was not a joint marital asset. The district court awarded the business to Joseph “[b]ased on [Joseph’s] testimony.” Along with awarding the business to Joseph, the court stated that Joseph was “responsible for payment of the purchase price of the business.”

¶36      Sonya’s briefing on this point is challenging because it consists largely of recounting financial matters pertaining to the marriage but unrelated to the ownership of the business. She then asserts, with no discernible effort to explain why, that the “findings/conclusions were entirely inadequate to explain the Court’s reasoning for giving ownership” of the business to Joseph. Her argument is difficult to follow, but its essence, insofar as we can tell, appears to be that the court erred in believing Joseph’s testimony over hers.

¶37 We disagree with Sonya that the court erred in crediting Joseph’s testimony regarding the ownership of the business over Sonya’s. Again, the court stated in its factual findings that its award of the business to Joseph was “[b]ased on [his] testimony.” In making this credibility determination, the court acted well within its discretion. “[W]here there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way.” Clarke v. Clarke, 2023 UT App 160, ¶ 27. This is because “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony. Even where testimony is uncontroverted, a trial court is free to disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up); see also Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶38      Here, the district court was in the best position to judge the credibility of the parties. It clearly found Joseph’s testimony regarding the ownership of the business to be more credible. Sonya has provided no reasoned argument—apart from her assertion that she disagrees with it—as to why the district court’s conclusion that the business was not marital property was erroneous. Accordingly, Sonya has failed to meet her “burden on appeal to show that no reasonable person would take the view adopted” by the district court, and we therefore conclude that the district court did not err in awarding the business, along with its liabilities, to Joseph. See Ouk, 2015 UT App 104, ¶ 14.[8]

  1. Equity in the Marital Home

¶39      Sonya’s final claim is that the district court abused its discretion in dividing equity in the marital home. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Thus, in such proceedings,

we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion. Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.

Id. (cleaned up).

¶40      Sonya’s claim focuses on three aspects of the court’s valuation of the home: (1) the mortgage amount, (2) the use of the Zillow estimate, and (3) the amount of the liens on the home. We address each in turn.

¶41      The Mortgage Amount. Sonya complains that the district court, based on Joseph’s testimony, should have used $298,000 as the amount owing on the mortgages rather than $402,000, an adjustment that would have benefitted her by increasing the equity she would have received. “Generally, the marital estate is valued at the time of the divorce decree or trial. However, in the exercise of its equitable powers, a trial court has broad discretion to use a different date, such as the date of separation, when circumstances warrant. If the trial court uses a date other than the date of the divorce decree, it must support its decision with sufficiently detailed findings of fact explaining its deviation from the general rule.” Rothwell v. Rothwell, 2023 UT App 50, ¶ 39, 531 P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In response to Sonya’s motion for amended findings, the court explained, “[Joseph’s] statement of the mortgage balance of $298,000 was referring to the total amount of all three (3) mortgages. The Court also took that into evidence taking into account that it was [Joseph’s] best estimate according to what his monthly mortgage payments are and how much was deducted from the principal each month.” We understand this to mean that the court took into consideration that it was through Joseph’s extraordinary post-separation payment efforts that the mortgage amount had been reduced. Moreover, Sonya concedes in her reply brief that it was within the district court’s discretion to use the earlier mortgage total. Accordingly, we see no abuse of discretion in the court’s use of the date of the separation to determine the amount of the mortgages.

¶42      The Zillow Estimate. Sonya next complains that the home should have been valued at about $260,000 more than was indicated by the Zillow estimate the court used. The glaring problem with this aspect of Sonya’s complaint is that it was her counsel’s idea to use the Zillow estimate. In open court, her counsel looked up the estimate and announced it to the court. And the court proceeded to base its calculations on the very data Sonya’s counsel supplied. We simply will not countenance Sonya’s assertion that the district court erred in proceeding to use the estimate that Sonya herself, through counsel, provided. Sonya invited any error in this regard. See Somer v. Somer, 2020 UT App 93, ¶ 14, 467 P.3d 924 (“Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court does not consider the party’s objection to that action on appeal.” (cleaned up)). In her briefing on appeal, Sonya points to nothing in the record that would have allowed the court to value the home using anything other than the Zillow estimate. Sonya does not challenge that the court acted on the only information it had and that Sonya herself provided. Accordingly, “given the absence of any expert financial testimony, . . . the paucity of assistance the parties offered the court,” and the representations made by Sonya’s counsel regarding the marital home’s value, we conclude that “the court in this instance made findings within its discretion and supported by the evidence it was given.” Clarke v. Clarke, 2023 UT App 160, ¶ 55.

¶43      The Liens. Sonya argues that the district court abused its discretion in counting third-party liens against the equity in the home. Given the evidence the court received, we see no error on the part of the court in this regard. Indeed, there was evidence to support the court’s determination that the third-party liens should be included in the calculation of the home’s equity. Joseph testified that when he and Sonya purchased the home, they did so knowing that they were assuming responsibility for some of the previous owner’s debts. This is an admittedly odd arrangement, but Joseph testified that they were willing to accept it because they were not in a financial position to purchase the home otherwise. Sonya offered no testimony or other evidence to contradict Joseph’s assertion, and she still points to nothing presented at trial that contradicted this evidence. Accordingly, we conclude that the factual findings that included the liability associated with the third-party liens were not clearly erroneous and that the court did not abuse its discretion in calculating the home’s equity.

CONCLUSION

¶44      Sonya has not demonstrated that the district court abused its discretion in its custody determination, in awarding the business to Joseph, or in its division of equity in the marital home. Affirmed.

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


[1] Because the parties share a surname, we refer to them by their given names.

[2] As addressed below, neither party’s briefs included sufficient citations to the record. This shortcoming has necessitated us combing the record to establish some semblance of a background, something we are not obligated to do. See State v. Wright, 2019 UT App 66, ¶ 47 n.6, 442 P.3d 1185 (explaining the parties’ duty to cite the record in appellate briefs), cert. denied, 456 P.3d 391 (Utah 2019). Accordingly, our recitation of the facts is necessarily minimal as we limit it to what is essential to resolve the issues on appeal.

[3] Neither party produced an appraisal of the home or an appraisal witness at trial, leading the court to ask the parties, “Does anybody have any valuation [of the home] at all?” Sonya’s counsel answered, “Well, we could do it [with] Zillow.” At this point, while in court, Sonya’s counsel looked up the value and reported, “According to Zillow as of today, the estimated value is $998,659.” No objection was lodged at trial to the court receiving this information. “Zillow is a commercial website that provides, among other things, an estimated market value for many residential properties.” Chaudry v. Chaudry, No. 1794, 2021 WL 2910977, at *9 n.7 (Md. Ct. Spec. App. July 12, 2021).

[4] This number reflected the amount owing at the time of separation. At the bench trial, Joseph testified that the amount was currently about $298,000.

[5] Joseph’s counsel provided a LexisNexis report as evidence of the liens on the home. This report was admitted as evidence with no objection.

[6] Nor did Joseph’s counsel provide a single citation to the record in his brief. This shortcoming is most unhelpful. While an appellee is not required to file a brief, see, e.g.AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76, we observe that if a brief is filed, it would behoove counsel to provide record citations. After all, and at the risk of stating the obvious, record citations are required because in their absence it’s difficult, and at times impossible, to figure out what the parties are referencing.

[7] “Parentification is often referred to as growing up too fast. Typically, it occurs when a child takes on parental responsibility for their siblings or even their parents, taking care of a sibling or parent physically, mentally, or emotionally. This can damage a child’s mental well-being and lead to long-term mental health conditions such as depression and anxiety.” Amber Felton, What Is Parentification, Web MD, https://www.webmd.com/parenting /what-is-parentification [https://perma.cc/N6TT-Y7QN].

[8] Sonya also argues that the district court violated her constitutional due process rights by its “ongoing interference” with her counsel’s presentation of her case. Quite frankly, apart from a litany of complaints about the court requiring counsel to keep her questioning relevant, the contours of her argument on appeal are difficult to discern, and she fails to cite a single case in support of the argument. Accordingly, we decline to consider her due process argument because it is inadequately briefed. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); see also Orlando Millenia, LC v. United Title Services of Utah, Inc., 2015 UT 55, ¶ 30 n.3, 355 P.3d 965 (“The briefing on this claim . . . is inadequate. [The appellant’s] briefing on this issue fails to cite any authority and makes no attempt to connect the law to the facts of this case.”).

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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).

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

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I Can Prepare a Prenuptial Agreement for You, but With Rare, Particular Exception, I Advise Against It.

Most attorney websites that contain “articles” on prenuptial agreements aren’t really articles but thinly veiled sales pitches for prenuptial agreements. This post is not one of those.

I have always believed and still believe that prenuptial agreements breed distrust, disloyalty, and defeatism in marriage for young people who contemplate marriage for the first time. That stated, at this point in my career as a divorce attorney (27 years), I struggle more than ever over the value and appropriateness of prenuptial and postnuptial agreements. Why?

One reason: if you trust the legal system to do right by you and your family, your trust is misplaced. So very many family law attorneys are profiteers. Courts are understaffed, judges and commissioners get jaded, expedience too often substitutes for evidence. I cannot put it more clearly and concisely than this: “Extricate yourself from the system, don’t try to vindicate yourself within it” (Peretz Partensky). A prenuptial or postnuptial agreement may (may) have value if it keeps the control of your divorce in your and your spouse’s hands instead of in the hands of a court.

Another reason: divorce laws and their application are unfair to men. Now, certainly there is plenty of unfairness to go around in the court’s treatment of women too, men generally get treated worse. Permit me to explain my perspective.

Men still generally have greater incomes and greater wealth than women generally. In no-fault divorces, men generally get soaked far more often than women. There are good men out there who married in the utmost good faith whose wives did more than simply use them up and cast them aside by divorcing them; they essentially enslaved their husbands for the rest of their good years (and into their not so good years) by stripping them of at least half of all they had, driving their husbands into debt, and burdening them with oftentimes ludicrous child support and alimony obligations. Because the law permits it.  A YouTuber named Pearl (https://www.youtube.com/@JustPearlyThings) and her guests discuss this at length. As a result of the sheer volume of discussion alone, they do a good job of examining the problem. Although her content is principally light and entertaining, the reality and the cognitive dissonance underlying her content is compelling.

The solution to the misery of divorce does not lie, however, in “making divorce laws fairer.”

Ensuring fairness and equity in divorce is important, no question, but the “divorce problem” is much greater than a legal problem and its solution does not even begin to lie in merely changing laws or enforcing them better. Obviously, divorce needs to exist to remedy serious threats and injustices that cannot be remedied any other way. But divorce is far too easy now, and marriage is criminally undervalued. It’s destroying our culture.

This may seem odd coming from a divorce attorney, but I believe to my core in marriage and family. We all need to devote ourselves to fostering and preserving and improving marriage and family life as the greatest source and protector of personal and societal purpose, peace and prosperity. There are causes bigger than ourselves and that are worthy of our sacrifices to see them succeed. Marriage and family are two of them. We are better individually by being loving and devoted members of a nuclear family. Even Kramden (https://en.wikipedia.org/wiki/The_Honeymooners)- or Bickersons (https://en.wikipedia.org/wiki/The_Bickersons )-style marriage and family life is far better than a world littered with broken marriages and families, self-absorption, and loneliness. Children need and deserve (it is their right!) to be reared in a nuclear family by a loving mother and father.

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

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A Changed Perspective on Justice as a New Legal Assistant By Braxton Mounteer

After working in civil law for a short time (specifically, in divorce and family law), I think that many people have the wrong idea about justice and the court system. When someone is asked to explain justice, they would say that it is punishing those who have done wrong and the exoneration of the innocent. It is a far more complicated, difficult (and often disappointing) process than I’d imagined.

And in divorce and family law, justice is (or at least should be) aided through the application of equity. Unlike criminal law, divorce is not about whether one violated the law, it’s a matter of ensuring that the spouses and children are treated fairly in the process of dissolving a marriage and making single people of those who were married. It’s the process of trying to find an equitable way to disentangle themselves from each other.

The principles behind the application equity are expressed in what are known as the “maxims of equity”. There are 20 to 22 maxims, depending upon the source you may consult. Not every maxim of equity applies in a divorce case. Those that apply in divorce are:

Equity looks on that as done which ought to have been done

Equity will not suffer a wrong to be without a remedy

Equity will not allow a wrongdoer to profit by a wrong

Equity does not punish

Equity is a sort of equality

One who seeks equity must do equity

Delay defeats Equity, or Equity aids the vigilant not the indolent

Equity imputes an intention to fulfil an obligation

He who comes into equity must come with clean hands

Equity delights to do justice and not by halves

Equity follows the laws

Equity will not assist a volunteer

Equity will not complete an imperfect gift

Where equities are equal, the law will prevail

Equity will not allow a statute to be used as a cloak for fraud

Between equal equities the first in order of time shall prevail

A complete list of the maxims of equity from the Wikipedia article on the subject (with a detailed, yet still concise, explanation of the maxims of equity can be found on Wikipedia here: Maxims of equity – Wikipedia.

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

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What are the primary concerns in determining parenting issues? Why?

What are the primary concerns of the courts in determining parenting issues? Why? 

In Utah (and in no particular order), the court must consider the factors articulated in these sections of the Utah Code when making a legal and physical custody award: 

  1. § 30-3-10. Custody of a child — Custody factors. 
  2. § 30-3-10.2. Joint custody order — Factors for court determination — Public assistance. 
  3. § 30-3-34. Parent-time — Best interests — Rebuttable presumption. 
  4. § 30-3-35.1. Optional schedule for parent-time for children 5 to 18 years of age. 
  5. § 30-3-35.2. Equal parent-time schedule. 

If I were to create a list of all factors from the above-referenced Utah Code sections, this answer would be too long, which is why I have provided hyperlinks to the Code sections for your review.  

CONCERN FOR FATHERS. What do fathers encounter far too often (not always, but far too often): “How can I rule against the father’s request for an award of joint equal legal and physical custody without my ruling appearing to be contrary to the facts, contrary to the best interest of the children and the irrational, biased or arbitrary, inequitable, discriminatory, unconstitutional thing that it is?” 

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

https://www.quora.com/What-are-the-primary-concerns-of-the-courts-in-determining-parenting-issues-Why/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 25: Roots

By Quinton Lister, legal assistant 

It is hard to change any undesirable thing without looking at and understanding its fundamental components. For instance, with addiction, the issue is often not the behavior itself. The addiction is frequently covering up a deeper root need or emotional response that we can’t see when looking at the addictive behaviors themselves. The only way to truly be rid of an addiction is to get at the fundamental part. The “root” of the problem. 

I mention this idea about “roots” and change to illustrate it is not uncommon that the reason we cannot make substantial change in our personal lives, and in society, is because we do not really understand the problem (and/or won’t confront the real problem). In the case of legal reform, we look at problematic laws being a possible root issue. But are they?   

Better laws (more clearly written, more rational and implementable laws) are always welcome, but they can’t make the people subject to them better. Better laws need better people to “work”, to benefit society.  

No amount of laws can make up for a lack of moral decency. To get real, effective, lasting legal reform, people reform. That’s not just the public at large, that includes judges, lawyers, law enforcement officers as well. You can change the law all you want, keep creating more and more rules—no matter how well-intentioned–and they will make no substantial change if the people aren’t wanting the good. Good men and women have more influence than merely good policy.  

So, instead of scratching our heads and fighting tooth and nail for an inch in legislative ground, maybe we should take a look at ourselves and our own moral fiber first.  

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

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Law from a legal assistant’s point of view, week 23: Injustice

By Quinton Lister, legal assistant

My blog post from this last week has got me thinking about the idea of injustice.  

So many issues in life are unfair. Even in a democratic republic like the United States of America, there has been a history of injustice and unfairness to so many despite the unparalleled freedom America provides and protects.  

But no system is perfect. That’s not just being trite, it is a profound reality. Externalities exist in this world because it is imperfect. Every good idea also has negative externalities or consequences.  

I do not deny bias and injustice exist. Even under the rule of law they still exist. But there is more and better justice than under the rule of a dictator or a tyrant.  

Still, how do we prevent and mitigate injustice? One way is to acknowledge injustice. We investigate it and we seek to understand it before we can take steps to resolve the problem itself. 

We also need to know what justice is and is not. We need to know the limits of earthly justice (and mercy).  

We need to be willing to change our beliefs and actions when they cause or foster injustice.  

We need to be people who desire justice and seek to be just ourselves, even when (especially when) justice may burden or injure us personally.   

In short, preventing injustice is a matter of personal responsibility. Only when people are committed to making a change in themselves can we hope that society (and the systems we have set up in society) will change. When people take responsibility to truly change for the better, society, which is the creation of the people, will have no choice but to follow. 

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

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Law from a legal assistant’s point of view, week 17: Fairness

By Quinton Lister, legal assistant

Before I started working as a legal assistant I was a philosophy major at BYU. During that time I read a portion of John Rawls treatise on justice. Mr. Rawls sought to equate justice with fairness. I would try and summarize what he meant by that, but unfortunately, I am far enough removed from my studies in philosophy that I could not give an accurate representation of what Rawls was saying in his writings. The reason that I bring it up now is that I have recently been contemplating what it means for an outcome to be fair. 

One issue I have seen since I started my current job is that many clients and potential clients have an idea of what they think is fair, but they do not see that their view does not align with what is fair according to the law. They have a specific expectation in mind about what should happen in their case, but when that expectation is not met, it means that what they did receive from the court is, in their view, not fair. Not getting what one wants is not an objective standard by which one can deem a particular effect as unfair. We all experience disappointment in life. In that sense, the fact that all of us experience some type of “unfairness” in our lives is, frankly, fair. I am not sure what constitutes fairness, I am not sure anyone does. But I know that it cannot just be getting what one wants. 

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

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Can a divorced spouse claim rights to a previous primary residence?

Can a divorced spouse claim rights to a previous primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

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. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also 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).

6¶ 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, 802 P.2d at 1320)).

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

https://www.quora.com/Can-a-divorced-spouse-claim-rights-to-a-previous-primary-residence/answer/Eric-Johnson-311

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Can a divorced spouse claim rights to a premarital primary residence?

Can a divorced spouse claim rights to a premarital primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

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. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also 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).

6¶ 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, 802 P.2d at 1320)).

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

https://www.quora.com/Can-a-divorced-spouse-claim-rights-to-a-previous-primary-residence/answer/Eric-Johnson-311

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Will the court compensate me if my spouse destroys my property?

I purchased a vehicle on payments prior to marriage; husband burned up vehicle; now it’s a delinquent debt on me, in divorce trial, can it be ask he consumes half of that delinquent debt?

Normally your premarital asset would be awarded to you as your separate property, and if it’s encumbered by a loan, you would be held solely responsible for the loan,

But because your husband abused and damaged the vehicle during the marriage, if you could prove that he did so without your consent, you might persuade the court to take that into account when dividing the marital estate (the marital estate is the property acquired during the marriage). For example, the court could divide the marital estate less than equally, with you receiving slightly more of the value of the marital estate than your husband does to compensate you for the damage he did to your vehicle.

It is also possible that the court could order your husband to pay the loan balance on the vehicle, if the court felt it fair. the court would have the power to do such a thing, if it felt that fairness warranted or dictated such a thing.

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

https://www.quora.com/I-purchased-a-vehicle-on-payments-prior-to-marriage-husband-burned-up-vehicle-now-it-s-a-delinquent-debt-on-me-in-divorce-trial-can-it-be-ask-he-consumes-half-of-that-delinquent-debt/answer/Eric-Johnson-311?prompt_topic_bio=1

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Spouse abused me emotionally, so I get more money in divorce now, right?

My spouse abused me emotionally, so I get more money in divorce now, right?

Strongly believing or feeling that “I deserve” an unequal division of the marital estate does not mean that you do legally deserve any such thing or that the court will agree with you. That is not how divorce law works. There are exceptions to this rule, but they are very rare.

You need to understand first that courts generally do not divide and distribute the marital estate (“marital estate” is the term for the property and assets acquired during the marriage) to reward or to punish a spouse.

The presumption is that the marital estate will be divided equally, unless there is some extenuating, exceptional circumstance that would warrant an unequal division and distribution (such as showing that one spouse inexcusably diminished the value of the estate and/or dissipated marital assets during the marriage to the detriment of the other spouse).

Rarely, if ever, is an unequal division of the marital estate made merely because the other spouse was physically or emotionally abusive or engaged in “unethical behavior.” If the court does make an unequal division of the marital estate based upon physically or emotionally abuse and/or unethical behavior, such misconduct would usually need to be 1) first, shown to be severe or chronic and 2) second shown to warrant/justify an unequal distribution of the marital estate property.

Meet and talk with a knowledgeable attorney to find out what the specific law is on this subject in your jurisdiction to find out what the law is where your divorce action is or will be filed.

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

https://www.quora.com/Divorce-attorneys-If-one-party-deserves-more-in-divorce-distribution-maybe-due-to-abuse-unethical-behavior-from-partner-etc-then-how-does-opposing-attorney-react-Do-they-give-as-deserved-or-still-fight-to-keep-for/answer/Eric-Johnson-311

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The bitter truth is better than the sweetest lie.

The bitter truth is better than the sweetest lie.

It was recently reported that a California judge has been censured after commenting on “smoking hot” women, proclaiming that he had the “biggest balls in the courthouse” and making other inappropriate remarks.

So why should you care?

Well, look, I don’t like vulgarity either, but I’d rather a man or woman deal with me as he/she is than play acting at being something he/she ain’t, especially if he/she were my judge holding my fate in his/her hands. We should all aspire to clean language, but more importantly, I want to know who I am really dealing with. I expect it of others, they expect it of me, especially in the legal profession. You don’t have to like the way I (or anyone else) express(es) speech, opinions, or values, but you should appreciate the fact that I (and anyone else) expresses myself/himself/herself honestly and sincerely.

What good is a First Amendment if it doesn’t apply—and liberally apply—to judges too?

And does anyone think that language this judge uses is all that unusual (yes, even for judges)? It’s not. Not even close. I’ve heard some (some, not all) of Utah’s own judges at every level use this same kind of language. It’s not refined, and yes, it can be perceived (rightly or wrongly) as crude, but it’s certainly not something that disqualifies a judge from being a judge!

Judges are regular people (even though some of them may wish to have us believe otherwise). Let judges be who they are! Who they really are. Who they honestly are. I’d much rather a judge show his/her true colors both on and off the bench than adopt one standard in private life and a double standard in public.

Elihu Root was no lout, and even he said (back in in 1912), “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” And Seneca said, “The bitter truth is better than the sweetest lie.”

Saying “ass” and “balls” and even “smoking hot” certainly isn’t the most tasteful way to behave, but the last thing we go to court seeking is taste; we go to courts seeking truth and justice and equity. A judge who, in private (hell (see what I did there?), even on the bench) says “ass” or “balls” or “don’t act like a scared little girl” doesn’t magically render one unable to render reasoned and just rulings–let’s concern ourselves with that, damn it.

 

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

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Divorce and your mortgage: what to know (guest post)

Divorce and your mortgage: what to know (guest post)

“Deciding how to deal with the family home is one of the most important issues to decide upon when there is a divorce,” says Mary Ann Ferreira. “First, there needs to be a decision on who will receive the home in the divorce. Once that is decided, a budget needs to be created to see if the receiving party can afford to keep the family home.”

Here we’ll explore different outcomes and solutions for deciding what to do with your home during a divorce. Click here to read the full article.

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

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To whom do you turn to when the police won’t protect you from your ex?

I am a domestic relations attorney. With this in mind, and if you are convinced that you don’t have enough evidence to obtain a restraining order, my answer to your question is:

You move.

Easier said than done, I know, but it’s still easier (and less discouraging, futile, and frustrating) than trying to force law enforcement officers to help you.

Even if you obtained a court order (ooooooh, a court order!) that “compelled” law enforcement officers to help you, chances are that the court would not enforce the order, if the law enforcement officers to whom it is directed refuse to help you.* Then factor in the time and effort (and money, if you hire an attorney to help you obtain the order) that goes in to seeking such an order, and it makes more sense to invest that time, effort, and money into doing something that works, something that has a much higher potential for success (if by “success” you mean getting away from your stalker/harasser/tormentor to safety and peace).

*Of course, this kind of law enforcement officer is too smart to blatantly refuse to help you. Instead, you’ll get the bureaucratic/administrative run around and the cops will play dumb (“this is a civil matter, ma’am”), so that they maintain plausible deniability. If that doesn’t work, they’ll threaten to arrest you (“disorderly conduct” and “disturbing the peace” are popular threats, as is “false report”) if you try to insist upon them enforcing your order.

Frequently, the best course of action is not to seek vindication through the legal system, but to extricate yourself from it. No, I am clearly not urging to violate the law, I am showing you that the legal system often disappoints. So if you can help yourself better than the legal system can help you (without being an outlaw, of course), then help yourself.

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

https://www.quora.com/Who-do-you-turn-to-when-the-police-wont-protect-you-from-your-ex-I-dont-have-enough-evidence-for-a-restraining-order-and-he-is-threatening-me-all-the-time-I-feel-like-all-I-can-do-is-move-house-Do-you-have-any/answer/Eric-Johnson-311

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In re B.T.B. 2018 UT App 157 – termination of parental rights and what is “strictly necessary”

In re B.T.B. 2018 UT App 157

This is from an e-mail I received from the Utah Parental Defenders, a truly good organization that supports attorneys who represent parents when the state petitions to curtail or terminate parental rights in juvenile court. I share it with you for your benefit and for the benefit of any parents you may know who may be facing this kind of problem themselves.

Huge Pro-Family Decision Handed Down by Utah Court of Appeals

Dear Parental Defenders,

We wanted to make you aware of a HUGE decision handed down yesterday by Utah’s Court of Appeals. Our friend and colleague, Rob Latham, secured an incredible victory for Utah’s families, opening the door for the Utah Court of Appeals to disavow the entire “almost automatically” line of cases. These were the cases that determined that where parental unfitness had been established, it was “almost automatically” in the child’s best interest to terminate parental rights.

HIGHLIGHTS

The Court of Appeals determined that although the facts supporting statutory grounds for termination might still support the conclusion that termination was in the child’s best interest, there was no support in statute or in Utah’s Supreme Court case law for a rule requiring interference almost automatically. In re. BTB, 2018 UT App 157, ¶ 22-24.

The Court of Appeals held that the “almost automatically” line of cases disempowered trial court judges from being able to “do equity” and “fashion a remedy that is in the best interest of the child” for cases involving families and children. Id.

The Court of Appeals held that the “strictly necessary” statutory requirement is to be understood “(a)s part of the “best interest” analysis required by the second element of the two-part test, along with all of the other facts and circumstances relevant to the case, trial courts should analyze whether termination of a child’s parent’s rights is “strictly necessary.”  ¶ 54

The words “strictly necessary” are to be given their plain meaning- that courts should “terminate parental rights only in situations when it is absolutely essential to do so. Because this analysis should occur within the context of the “best interest” examination, it should be undertaken from the child’s point of view, not the parent’s ¶ 54

Part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. “ ¶ 55

We strongly recommend you take the opportunity to [read the case in its entirety], as it is flush with pro-family and pro-parent language that will be useful to all of you in your cases at trial and on appeal. We also encourage you to take a moment to congratulate Rob on the incredible work he put in on this case!

Best,

PDA Board of Directors

 

2018 UT App 157

THE UTAH COURT OF APPEALS

IN THE INTEREST OF B.T.B. AND B.Z.B.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

V.T.B.,
Appellant,
v.
J.P.B.,
Appellee.

Opinion

No. 20170906-CA

Filed August 23, 2018

Fifth District Juvenile Court, St. George Department

The Honorable Michael F. Leavitt

No. 1142575

  1. Robert Latham, Attorney for Appellant
    LaMar J. Winward, Attorney for Appellee
    Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 V.T.B. (Father) appeals the juvenile court’s order terminating his parental rights to his children, B.T.B. and B.Z.B. He contends that termination was not “strictly necessary” in this case, for various reasons. Father’s arguments compel us to directly analyze the meaning of the phrase “strictly necessary,” as used in Utah Code section 78A-6-507(1), and require us to examine how that relatively new statutory admonition fits with the historical two-part test we have long applied in termination of parental rights cases.

¶2 In order to comprehensively answer these questions, we find it necessary to re-examine and disavow some of our case law in this area. Ultimately, we conclude that courts should analyze the “strictly necessary” language as part of the “best interest” element of our historical test, but we emphasize that—partly because of the addition of the “strictly necessary” aspect of the analysis—the “best interest” inquiry should be applied in a more thorough and independent manner than some of our cases might suggest. Because we clarify and partially reformulate the test for termination of parental rights, we remand this case to the juvenile court for reconsideration in light of this opinion.

BACKGROUND

¶3 Father and J.P.B. (Mother) married in 2010 and divorced in 2013. B.T.B. and B.Z.B. (the Children) are their children. After the divorce, the Children remained in Mother’s custody; they have never been in the custody of the State. Beginning in 2012, Father has periodically been incarcerated for a variety of offenses, largely resulting from drug use. Since the divorce, Father has had only occasional contact with the Children, visiting them a total of fourteen times and sending them infrequent letters and Facebook messages. Father has never paid child support, despite being ordered to do so.

¶4 In March 2017, Mother filed a petition with the juvenile court to terminate Father’s parental rights. As discussed in greater detail below, Utah courts have historically applied a two-part test when considering whether to terminate parental rights: whether statutory grounds for termination are present, and whether termination of the parent’s rights is in the best interest of the affected child. See In re T.E., 2011 UT 51, ¶11 17-18, 266 P.3d 739. At the termination of parental rights hearing, Mother argued that statutory grounds for termination existed because Father had abandoned and neglected the Children, and had made only “token efforts” to communicate with them. Mother argued that it would be in the Children’s best interests for Father’s parental rights to be terminated because it “ripped [the Children’s] hearts out every time” Father went to prison and dropped out of contact, causing significant instability in their lives. Mother also referenced some of our cases that indicate that, when statutory grounds for termination are present, it follows “almost automatically” that it will be in the child’s best interest to terminate the parent’s rights. Although Father did not contest the existence of statutory grounds for termination, he argued that it was not in the Children’s best interests to terminate his rights because he “loves [the Children], loves to be with [the Children], cares about them, [and] wants to protect them,” and because the Children could benefit from having a “strong relationship” with him.

¶5 Father also advanced a separate argument, pointing out that the Utah Legislature modified the relevant statutory language to state that courts may terminate parental rights only if they find termination to be “strictly necessary.” See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2012). Father argued that this statutory modification required the juvenile court to find that termination was “strictly necessary” before terminating his parental rights, and argued that this requirement could not be met unless the termination was required to “free the children for adoption.” Thus, Father asserted that, because Mother’s petition did not anticipate an adoption or any other change in the Children’s living situation, it was not “strictly necessary” to terminate his rights.

¶6 After taking the matter under advisement, the juvenile court issued an order terminating Father’s rights. The court found that several statutory grounds for termination were present. The court further determined that termination of Father’s parental rights would be in the Children’s best interests, because “[t]he Children have not had the opportunity to establish any kind of appropriate parent-child relationship” with Father and because reintroduction of Father into the Children’s lives would likely require “reintroduction therapy,” which the court determined would “not provide the Children the kind of permanency that they need and deserve.” The court “separately” analyzed whether termination of Father’s rights was “strictly necessary,” and rejected Father’s argument that, without a pending adoption, termination could never be “strictly necessary.” The court found it “strictly necessary” to terminate Father’s rights, because Father’s “inconsistent parent time . . . will continue to damage the Children unless they are given a more permanent living situation,” and determined that “such permanency is only available to the Children by terminating” Father’s rights.

ISSUES AND STANDARDS OF REVIEW

¶7 Father appeals the juvenile court’s order terminating his rights. The crux of the appeal is whether the juvenile court correctly applied the “strictly necessary” language to the historical test for termination of parental rights. We review a trial court’s interpretation of a statute for correctness. Holste v. State, 2018 UT App 67, ¶5.

¶8 The ultimate decision about whether to terminate a parent’s rights “presents a mixed question of law and fact.” In re B.R., 2007 UT 82, 112, 171 P.3d 435. In such situations, we review a trial court’s “findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” In re G.B., 2002 UT App 270, 1 11, 53 P.3d 963 (quotation simplified). Indeed, due to the “factually intense nature” of the analysis, a trial court’s final decision regarding termination of parental rights “should be afforded a high degree of deference.” In re B.R., 2007 UT 82, ¶12.

Accordingly, to overturn a trial court’s decision in a termination case, “the result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified).

ANALYSIS

I.

¶9 A parent’s right to raise his or her child is one of the most precious rights any person enjoys, and is among the fundamental rights clearly protected by our federal and state constitutions. See Troxel v. Granville, 530 U.S. 57, 65-66 (2000). Indeed, the United States Supreme Court has stated that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes. Id. at 65; see also id. at 66 (citing cases, and stating that “[i]n light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children”).

¶10 For its part, our supreme court has been no less emphatic in its description of the constitutional importance of the rights of parents, declaring that “[a] parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child,” that lilt is fundamental to our jurisprudence that the custody, care, and nurture of the child reside first in the parents,” and that “the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (quotation simplified).

¶11 Our legislature has expressed a similar view, making legislative findings that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s children.” Utah Code Ann. § 62A-4a-201(1)(a) (LexisNexis Supp. 2017); see also id. § 78A-6-503(1) (making identical findings). This fundamental liberty interest “does not cease to exist simply because a parent may fail to be a model parent.” Utah Code Ann. § 62A-4a-201(1)(b). Indeed, “[alt all times, a parent retains a vital interest in preventing the irretrievable destruction of family life.” Id.

¶12 Given the constitutional dimension of parental rights, the legal standards for terminating them are strict. Our supreme court has so stated on several occasions, emphasizing that “[t]he termination of parental rights is a drastic measure that should be resorted to only in extreme cases, when it is clear that the home is unable or unwilling to correct the evils that exist.” In re A.H., 716 P.2d 284, 287 (Utah 1986); see also In re Castillo, 632 P.2d 855, 856 (Utah 1981) (stating that “it is not our view . . . that the termination of parental rights can be decreed without giving serious consideration to the prior and fundamental right of a parent to rear his [or her] child”); In re Baby Girl Marie, 561 P.2d 1046, 1048 (Utah 1977) (stating that “[t]he permanent termination of all parental rights is one of the most drastic actions the state can take”).

¶13 Under the test established by our legislature and our supreme court, parental rights can be terminated only if both elements of a two-part test are satisfied. First, a trial court must find that one or more of the statutory grounds for termination are present. See In re A.C.M., 2009 UT 30, 91 23, 221 P.3d 185. In the current statute, these statutory grounds are listed in Utah Code section 78A-6-507, and include things such as abuse, neglect, and abandonment. See Utah Code Ann. § 78A-6-507(1). Second, a trial court must find that “termination of the parent’s rights is in the best interests of the child.” A.C.M., 2009 UT 30, 1 23; see also In re T.E., 2011 UT 51,1 18; Utah Code Ann. § 78A­6-503(12) (stating that, if it finds statutory grounds for termination, “the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered”). The trial court must make both of these findings not merely by a preponderance of the evidence, but by “clear and convincing evidence,” see In re T.E., 2011 UT 51, 1 17, and the burden of proof rests with the petitioner, see Utah Code Ann. § 78A-6­506(3) (LexisNexis 2012).

¶14 Each part of this test is important. Indeed, our supreme court once rejected, as unconstitutional, legislative efforts to remove the first part of the test—the one that requires the presence of parental unfitness (or similar ground) before termination occurs. See In re J.P., 648 P.2d at 1374-75. At issue in that case was a 1980 statute that eliminated all statutory grounds for termination, and reduced the test simply to whether “such termination will be in the child’s best interest.” Id. at 1368. Our supreme court held that statute unconstitutional, stating that “termination of parental rights solely on the basis of the child’s best interest and without any finding of parental unfitness, abandonment, or substantial neglect, violates the parent’s [constitutional] liberty rights.” Id. at 1375. The court rejected the State’s argument, in defense of the statute, that “any distinction (between the best interest and unfitness standards) is a mere matter of semantics.” Id. at 1368 (quotation simplified). The court emphasized that the test for termination of parental rights properly contains both elements, explaining that “[t]he best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” and is “a vital ingredient in a determination that has at least two elements,” but that “no court is warranted in applying the ‘polar star principle’ until after evidence of unfitness is present. Id. (quotation simplified).[1]

¶15 Indeed, our supreme court has never endorsed any watering-down of the two-part test for termination of parental rights. That court has always articulated a test comprised of two distinct, rigorous parts, each of which must be satisfied before parental rights can be terminated. See In re T.E., 2011 UT 51, 191 17-18; In re A.C.M., 2009 UT 30, 1 23; see also In re J.P., 648 P.2d at 1368 (rejecting the argument that there was only minimal distinction between the two elements of the test). The court must find that one of the statutory grounds (e.g., abuse, neglect, abandonment) is present, and that termination of parental rights is in the best interest of the child.

¶16 And, at least not in recent years (the 1980 episode notwithstanding), our legislature has not attempted to weaken the two-part test either. The statutory scheme currently requires the presence of one or more grounds for termination, such as abuse, neglect, or abandonment, see Utah Code Ann. § 78A-6-507(1)(a)-(i), and, in addition, twice instructs courts that, even where statutory grounds are present, they must still “consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered,” see id. § 78A-6-503(12); see also id. § 78A­6-506(3) (stating that, after the petitioner has established grounds for termination by clear and convincing evidence, “the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered”).

¶17 Moreover, in 2012 the legislature inserted new language into section 507, stating that a court may terminate parental rights only “if the court finds [termination] strictly necessary.” See Utah Code Ann. § 78A-6-507(1). We must here decide what that additional language means and how it fits with the historical two-part test, but it is obvious from the language used (“strictly necessary”) that the legislature was not attempting to make it easier for courts to terminate parental rights.

¶18 Thus, every indication from our legislature and our supreme court demonstrates that our law has had, and continues to have, a rigorous test that does not permit termination of a parent’s fundamental constitutional right to parent his or her child unless both (a) statutory grounds for termination are present, and (b) termination is in the best interest of the child.

II.

¶19 Since the 2012 statutory amendment, we have mentioned the “strictly necessary” language on a number of occasions,[2] but we have not provided definitive guidance on whether, and how, the “strictly necessary” statutory addition affected the historical two-part test for termination of parental rights. Given the questions raised in Father’s appeal, we must address these issues. In order to do so comprehensively, we must examine not In re B.T.B. only the statutory language in question (“strictly necessary”), but also some of our case law that is inconsistent with the statutory language.

¶20 In contrast to our supreme court and our legislature, this court has developed a line of cases that has gradually but meaningfully diluted the second (“best interest”) element of the two-part test. This court stated as far back as 1988 that satisfaction of

[t]he second prong of the objective abandonment test, whether the parental disregard led to the destruction of the parent-child relationship, satisfies the need separately to consider the best interest of the child. If the parent-child relationship has been destroyed by the parent’s conduct, or lack of conduct, it is usually in the best interest of the child to terminate that relationship . . . .

In re J.R.T., 750 P.2d 1234, 1238 (Utah Ct. App. 1988) (emphasis added). Although the applicability of that statement could be interpreted to be limited to cases in which a parent’s rights were terminated as the result of abandonment, over time, in some of our cases.[3] we have extended this concept to other types of termination cases, and categorically declared that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” See, e.g., In re G.J.C., 2016 UT App 147, ¶ 25, 379 P.3d 58 (emphasis added) (quotation simplified); see id. (applying the concept in an unfitness case, and also stating that “[i]t is an unusual case where grounds for termination are found but termination is held not to be in the child’s best interest”).[4]

¶21 In these cases, we have emphasized that exceptions to this rule are rare. Indeed, we have recognized “unusual” situations in only two cases: (1) where a parent sought relinquishment of his or her own rights in an effort to avoid child support obligations, and in such cases we acknowledged that it may be in the child’s best interest from a financial standpoint to keep the parent on the hook, see In re B.M.S., 2003 UT App 51, 11 19-20, 65 P.3d 639; and (2) where the child in question was old enough to express a meaningful preference and objected to the termination, see In re D.R.A., 2011 UT App 397, ¶115, 19, 266 P.3d 844. Although our case law certainly leaves the door open for the recognition of other exceptional situations, we have not yet recognized any, and we have repeatedly emphasized that, once a court finds a statutory ground for termination, it will almost always follow from that conclusion that it is in the child’s best interest to terminate parental rights.

¶22 Certainly, statutory grounds can inform the “best interest” inquiry; indeed, in many cases, the facts supporting the conclusion that statutory grounds for termination are present might also support the conclusion that it is in the child’s best interest for the parent’s rights to be terminated. See In re J.D., 2011 UT App 184, 1 33 n.1, 257 P.3d 1062 (Orme, J., concurring) (stating that “it may be that something of a sliding scale exists,” and that more weighty grounds for termination might more easily lead to the conclusion that termination is in the child’s best interest). For example, it may follow from a finding that a parent has violently or sexually abused his or her child that it is in the best interest of the child to terminate the parent’s rights. But there is no support in statute or in Utah Supreme Court case law for a rule requiring such an inference “almost automatically” in every case and, in addition, our development of this principle has created a number of unfortunate problems in our law.

A

¶23 The first problem with essentially merging the “best interest” inquiry into the “statutory grounds” inquiry is that we have removed a useful—and perhaps constitutionally required[5]— tool from our trial judges’ toolkits. In the course of hearing all of the evidence in the case, the trial judge gets to know the family in question—she can hear the parent speak, listen to the caseworker’s observations, sometimes even hear from the child (or at least a guardian ad litem), and learn more than an appellate court can about the details of the family dynamics at play. In family and domestic cases, our law grants trial judges wide latitude to make factual findings and to craft solutions for families and children that make the most sense in the particular situation. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (stating that “[i]n order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers”). In short, we allow trial judges in family cases to do equity, and the touchstone of that equitable inquiry is to fashion a remedy that is in the best interest of the child. Our “almost automatically” line of cases disempowers trial judges to do equity— to act in the best interest of the child—in cases involving families and children.[6]

B

¶24 The second problem with our “almost automatically” line of cases is that it functionally shifts part of the burden of proof in termination cases, at least on the “best interest” element, from the petitioner (the Utah Division of Child and Family Services (DCFS) or a private party, often another parent or stepparent) to the parent whose rights are at issue. Our legislature has been clear that, in termination cases, trial courts “shall in all cases require the petitioner to establish the facts by clear and convincing evidence.” See Utah Code Ann. § 78A-6-506(3). We have often articulated this legal principle, see, e.g., In re R.A.J., 1999 UT App 329, 1 16, 991 P.2d 1118 (stating that “[t]he burden of proof on the issue of what is in the best interest of the child is upon the petitioner in a termination of parental rights case”), but we have not always implemented it this way in practice. Two cases are illustrative.

¶25 In In re A.M.O., 2014 UT App 171, 332 P.3d 372, the child’s stepmother petitioned to adopt the child and to terminate the parental rights of the child’s mother. Id. II 2, 3, 7. The mother “struggled with drug addiction,” had been incarcerated for lengthy periods, and had “no meaningful contact” with the child. Id. 1 4. Based on these facts, the trial court found that the mother had abandoned the child, and no party challenged that finding on appeal. See id. But the trial court denied the stepmother’s petition to terminate the mother’s parental rights, because the trial court found that the stepmother had not carried her burden to demonstrate that termination was in the child’s best interest. Id. 1 6. Specifically, the trial court “stated that it had heard ‘very little evidence’ on the issue of best interest and had not heard testimony from any therapist indicating how [the child] understood his relationship with [the mother].” Id. In the end, the trial court declared that “it had not heard evidence that would convince the court that it would be in [the child’s] best interest to terminate [the mother’s] parental rights.” Id. (quotation simplified).

¶26 The trial court’s determination—that the stepmother had not carried her burden of proof that termination was in the child’s best interest—was supported with reasoned analysis, but we did not affirm it. Instead, we cited our “almost automatically” case law, id. 1 20, and explained that the trial court did not make an independent finding that “this is one of those rare cases where termination is not in the best interest of the child despite the existence of grounds for termination,” and did “not explain why the two requirements for termination are not satisfied hand-in-glove,” id. ¶ 22. We determined that the court’s findings were therefore “conclusory” and “inadequate,” id. ¶¶ 21-22, and reversed the trial court’s order denying the petition, and remanded the case for additional findings, id. ¶ 23.

¶27 This analysis relied too heavily on the “almost automatically” concept. It should have been sufficient for affirmance that the trial court made a reasoned, supported finding that the movant had not carried her burden of proof on the best interest element. Trial courts should not have to make any additional finding that a case is “rare” or “unusual” in order to determine that a parent’s rights should not be terminated. By imposing this additional requirement, we have placed a burden on the parent whose rights are at issue to come forward at the termination hearing with some evidence demonstrating that the case is “rare” or “unusual.” (Certainly, the petitioner (e.g., DCFS) will not have an incentive to bring any such evidence to the trial court’s attention.) And we thereby made it incrementally easier for a petitioner to obtain an order of termination of parental rights.

¶28 Similarly, in In re G.J.C., 2016 UT App 147, a child’s mother sought to terminate the parental rights of the child’s father. Id. ¶10. The parents’ divorce proceedings were
particularly contentious, with the mother at one point obtaining a protective order against the father, and with the father on multiple occasions refusing to return the child after parent-time. Id. 11 3-5. On one occasion, the father attempted to kidnap his parents-in-law in connection with a parent-time exchange, at one point even threatening them with a handgun. Id. ¶ 7. The father eventually pled guilty to attempted kidnapping, and served prison time. Id. ¶ 9. Later, after the termination trial, the court made “careful[] and thorough[]” findings about the reasons for termination, finding five different statutory grounds to terminate the father’s rights. Id. 19.

¶29 However, the trial court “concluded that [the mother] failed to meet her burden” of demonstrating that termination of the father’s rights was in the best interest of the child. Id. 91 23. As described in our opinion, the trial court offered five separate reasons why the mother had not met her best-interest burden, including the “lack of another person to step in to the role” as the child’s father, the lack of evidence that the child had been harmed by his relationship with the father, and the positive role that the father’s extended family played in the child’s life. Id. We quoted the trial court as finding that “this child could benefit from a positive, loving, nurturing relationship with his extended family,” and that it was “possible” for the child to have that kind of relationship with his father also. Id. The court therefore denied the mother’s petition to terminate the father’s parental rights. Id.

¶30 Despite the trial court’s determination that the mother had not met her burden of proof, we reversed the trial court’s decision not to terminate the father’s parental rights, concluding that the court’s best interest determination was “against the clear weight of the evidence.” Id. 133. As we did in In re A.M.O., we cited our “almost automatically” case law, id. 11 25, and determined that the trial court’s findings regarding statutory grounds for termination could “support only a best-interest determination that termination is appropriate,” id. ¶ 32 (quotation simplified).

¶31 It is evident that our “almost automatically” case law has, subtly but meaningfully, shifted the burden of proof in termination of parental rights cases, and has imposed a burden on parents whose rights are at issue to bring forth evidence demonstrating that their case is a “rare” or “unusual” case in which, despite the presence of statutory grounds for termination, it is nevertheless in the child’s best interest not to terminate. Such burden-shifting is contrary to statutory command. See Utah Code Ann. § 78A-6-506(3).

C

¶32 Finally, we also conclude that our “almost automatically” case law is inconsistent with the relatively new statutory language that allows termination of parental rights only when it is “strictly necessary” to do so. Utah Code Ann. § 78A-6-507(1).

¶33 The parties advance various theories about the meaning of the “strictly necessary” language. Father contends that the language was intended to add a third element—a “new and distinct statutory requirement” — to the termination of parental rights test, so that a court considering termination would be required to make a specific finding as to the strict necessity of its decision in addition to finding both grounds for termination and that termination would be in the child’s best interest. In contrast, the guardian ad litem contends that the “strictly necessary” language is completely prefatory—essentially meaningless introductory language—and that it does not affect the test at all. For her part, Mother contends that the language did not add a third element to the termination test, but was instead meant to be analyzed as part of the “best interest” element of the test.[7]

¶34 We discuss the meaning of the “strictly necessary” language more fully later in this opinion. For now, it suffices to note that the only one of these three interpretations that is even potentially consistent with our “almost automatically” line of cases is the interpretation advanced by the guardian ad litem—that the language is simply prefatory and carries no substantive meaning whatsoever—and to explain that we find this argument unpersuasive.

¶35 As a general matter, courts “avoid interpretations that will render portions of a statute superfluous or inoperative.” See Hall v. Utah Dep’t of Corr., 2001 UT 34, 1 15, 24 P.3d 958; see also State v. Maestas, 2002 UT 123, 1 52, 63 P.3d 621 (stating that “when reading the statutory language, our purpose is to render all parts of the statute relevant and meaningful” (quotation simplified)). In this instance, however, the guardian ad litem asserts that the legislature specifically intended the “strictly necessary” language to be a prefatory “statement of policy” that “does not create new rights and obligations.” Our supreme court has stated that, where statutes contain “a statement of legislative purpose,” a “preamble,” or a “declaration of policy,” such language “provide[s] guidance to the reader as to how the act should be enforced and interpreted, but [it is] not a substantive part of the statute.” See Price Dev. Co. v. Orem City, 2000 UT 26, 1 23, 995 P.2d 1237 (quotation simplified).

¶36 The guardian ad litem’s argument fails in this case, for one simple reason: the “strictly necessary” language does not appear in a statutory preamble or statement of legislative policy. See Westly v. Board of City Comm’rs, 573 P.2d 1279, 1280 (Utah 1978) (interpreting a section of a statute that was specifically designated as a “declaration of policy,” and concluding that it was not a substantive part of the statute (quotation simplified)). Instead, the “strictly necessary” language appears prominently in the first subsection of the “grounds for termination” statute, and states that “if the court finds strictly necessary, the court may terminate all parental rights . . . if the court finds any one” of the statutory grounds for termination to be present. See Utah Code Ann. § 78A-6-507(1). This statutory subsection is not a preamble or specifically-identified “statement of policy”; rather, it is a substantive portion of the statute. There is therefore no indication in the statute itself that the “strictly necessary” language was intended to be part of a separate non-substantive preamble or policy statement.[8]

¶37 Because we conclude that the words “strictly necessary” are not merely prefatory and therefore must have substantive meaning, it necessarily follows that those words are inconsistent with case law declaring that termination of parental rights follows “almost automatically” upon a finding that statutory grounds are present. If the words are to have substantive meaning, it cannot be that parental rights are to be terminated “almost automatically” once a court has determined that a statutory ground for termination exists.

¶38 For all of these reasons, we consider the “almost automatically” line of cases highly problematic. It lacks any constitutional, statutory, or Utah Supreme Court support, has led to several practical problems in its implementation, and is inconsistent with the statutory language permitting termination of parental rights only when “strictly necessary.”

III

¶39 We recognize, of course, that our concerns about the “almost automatically” line of cases do not necessarily mean that we should disavow it. The determination as to whether a line of cases should be overruled is governed by the principle of horizontal stare decisis, by which “one panel on the court of appeals owes great deference to the precedent established by a different panel on the court of appeals.” State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592. There are “two broad factors” that we should consider before overruling any precedent: “(1) the persuasiveness of the authority” and the “reasoning on which the precedent was originally based”; and “(2) how firmly the precedent has become established in the law since it was handed down.” See Eldridge v. Johndrow, 2015 UT 21, 1 22, 345 P.3d 553. This second factor “encompasses a variety of considerations, including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id.

¶40 Applying this standard to the case at hand, the first factor weighs heavily in favor of disavowal. As we have explained, the “almost automatically” line of cases is unsupported, and we have set forth several different problems with those cases.

¶41 The second factor also weighs in favor of disavowal. Although superficially it may appear that this line of cases is well-established in the law, having been first introduced in 1988, a close analysis indicates that this precedent is not as firmly established in the law as one might think. Contrary to the guardian ad litem’s argument, our supreme court has never adopted it or even referred to it.[9] As discussed above, our supreme court still appears to apply the original two-part test in termination of parental rights cases, with each part apparently remaining robust. See In re T.E., 2011 UT 51, ¶91 17-18; In re A.C.M., 2009 UT 30, 123. Indeed, on one occasion, that court specifically rejected the argument that “any distinction (between the best interest and unfitness [parts of the test]) is a mere matter of semantics.” See In re J.P., 648 P.2d at 1368.

¶42 Moreover, our “almost automatically” line of cases is also at odds with some of our own case law. For instance, in In re R.A.J., 1999 UT App 329, we affirmed a juvenile court’s decision to deny a petition for termination of parental rights. Id. TT 1, 24. On appeal, the petitioners argued that, once the juvenile court found statutory grounds for termination, it should have presumed “that termination was in the child’s best interests.” Id. ¶21. We rejected that argument because “[t]here is no such presumption in Utah.” Id. Indeed, we stated that if we were to adopt that position, “it would make little sense to employ the two-step analysis required by Utah law” in termination cases. Id. ¶22. We further noted that “[b]oth parts of the analysis are necessary, as required by the statutory arrangement adopted by the Utah Legislature, and both must be proven by those seeking termination of the parent-child relationship.” Id. Neither our decision in R.A.J., nor any of our other cases to speak in similar terms,[10] has ever been overruled or otherwise called into question, and thus there exist contrary lines of case law in our jurisprudence.[11]

¶43 Finally, our precedent has not, in our view, engendered any meaningful “reliance” upon it such that disavowal would “create injustice” or upset litigants’ expectations. One way this principle could come into play in this situation is if the disavowal of our line of cases could allow parents whose rights were terminated thereunder to come back into court and re-litigate the termination issues. For better or for worse, however, our law contains no provision — other than a full-scale re-adoption — permitting a parent whose rights have been terminated to regain those rights. See Utah Code Ann. § 78A-6­513(1) (LexisNexis Supp. 2017) (stating that a termination order “divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other, except the right of the child to inherit from the parent”); see alsoid. § 78A-6-514(4) (LexisNexis 2012) (stating that even a “voluntary relinquishment or consent for termination of parental rights . . . may not be revoked”). Any rule we might announce regarding disavowal would apply only prospectively, and would not allow, for instance, the parents whose rights were terminated in A.M.O. and G.J.C. to re-open those cases and thereby upset whatever permanency and stability those rulings fostered. There is therefore no reliance-based reason to shrink from disavowal of our “almost automatically” line of cases.

¶44 For all of these reasons, the principle of stare decisis is no bar to disavowal of our precedent in this area. Accordingly, we disavow our prior cases to the extent they suggest that, once statutory grounds for termination are established, it follows “almost automatically” that termination will be in the best interest of a child, or that it is only in “rare” or “unusual” cases that termination of parental rights will not follow from a finding of statutory grounds for termination.[12]

IV

¶45 We must now address the specific questions raised by the facts of this case, and we do so unconstrained by our “almost automatically” line of cases. First, we examine the “strictly necessary” language in Utah Code section 78A-6-507(1), and determine its meaning. Second, and relatedly, we address the precise question Father raises, namely, whether termination of parental rights can ever be “strictly necessary” if no adoption or other alternative parenting arrangement is contemplated.

Finally, we must consider whether the juvenile court correctly applied governing legal principles to the facts of this case.

A

¶46 As noted earlier, the parties advance three different interpretations of the “strictly necessary” language. We have already rejected the interpretation proposed by the guardian ad litem. We now examine the other two arguments, and in the end we are persuaded, in general, by the interpretation advanced by Mother and (at least at the hearing) endorsed by the juvenile court: that the “strictly necessary” language does not create a separate third element of the test for termination of parental rights but, instead, should be considered as an important part of the “best interest” inquiry.

¶47 The “best interest” test is broad, and is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation. More than a century ago, our supreme court noted that the concept included examination of “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child,” and that the best interest of the child, so defined, was the “paramount consideration” in cases involving termination of parental rights. See Harrison v. Harker, 142 P. 716, 719 (Utah 1914) (quotation simplified). As far as we are aware, the breadth of the “best interest” inquiry has never been diminished; indeed, we have recently defined the “best interest” inquiry as a “subjective assessment based on the totality of the circumstances” surrounding the child. See In re G.J.C., 2016 UT App 147, 9I 24.

¶48 Surely a test this broad, and intended to capture all of the relevant facts and circumstances unique to a particular child’s situation, is sufficiently comprehensive to encompass an inquiry into whether termination of a parent’s rights is actually necessary. Indeed, at times, we have spoken in similar terms. See, e.g., In re S.T., 928 P.2d 393, 401 (Utah Ct. App. 1996) (concluding, in the context of applying the two-part test, that “under these difficult circumstances, termination of appellants’ parental rights is necessary”).

¶49 Unfortunately, as discussed herein, we have not always applied the “best interest” test correctly in termination cases. By sometimes effectively collapsing the “best interest” analysis into the “statutory grounds” analysis through our “almost automatically” line of cases, we have unnecessarily narrowed the best interest test and deprived it of some of its vitality. Given the existence of our “almost automatically” line of cases, it is no wonder that some attorneys (including Father’s attorney) have, in recent years, argued for the “strictly necessary” language to be construed as creating a new, third element of the termination test. But there is no need to view it this way, so long as the “best interest” element is applied independently. See In re J.P., 648 P.2d at 1368 (stating that “[t]he best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights”).

¶50 We therefore conclude that, as part of the “best interest” analysis required by the second element of the two-part test, along with all of the other facts and circumstances relevant to the case, trial courts should analyze whether termination of a child’s parent’s rights is “strictly necessary.”

¶51 In terms of what “strictly necessary” actually means, the phrase is not defined in the relevant statutory section. If it were, “we would of course look there first.” See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85. Because it is not defined in the statute, and because we are unaware of any specialized meaning of the phrase that ought to apply, we must interpret the statutory language “according to the plain meaning of [its] text.” See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465 (quotation simplified).

¶52 As a “starting point” toward ascertaining legislative intent from plain language, we look to dictionary definitions of the words the legislature used. See State v. Bagnes, 2014 UT 4, 1 14, 322 P.3d 719. All dictionaries that we consulted, or that were brought to our attention during this case, define “necessary” in terms of being “needed,” “absolutely needed,” or “essential.” See, e.g., Necessary, Cambridge Dictionary, http://dictionary.cambridge.org/us/dictionary/englis h/necessary [https://perma.cc/2NNR-KKRM] (“needed in order to achieve a particular result”); Necessary, English Oxford Living Dictionaries, http://en.oxforddictionaries.com/definition/ necessary [https://perma.cc/555C-DJ4S] (“needed to be done, achieved, or present; essential”); Necessary, Merriam-Webster, www.merriam-webster.com/dictionary/necessary
[https://perma.cc/K67R-DA6L] (“absolutely needed”); Necessary, Webster’s Third New Int’l Dictionary 1510-11 (1993) (“that cannot be done without; that must be done or had; absolutely required; essential, indispensable”).

¶53 Adding the modifier “strictly” in front of “necessary” strengthens the phrase; indeed, the word “strictly” is commonly defined as “completely” or “entirely,” or “with no exceptions.” See, e.g., Strictly, Cambridge English Dictionary, dictionary.camb ridge.org/us/dictionary/english/strictly [https://perma.cc/Y7MT-SDWM] (“completely or entirely”); Strictly, English Oxford Living Dictionaries, en.oxforddictionaries.com/definition/strictly [https://perma.cc/P9XQ-ZLSD] (“with no exceptions; completely or absolutely”); Strict, Merriam-Webster, www.merriam-webster.com/dictionary/strict             [https://perma.cc/3YQT-TKDS]
(“inflexibly maintained or adhered to”); Strictly, Webster’s Third New Int’l Dictionary 2261 (1993) (“without latitude”).

¶54 Accordingly, when we give the words “strictly necessary” their plain meaning, we understand that the legislature intended for courts to terminate parental rights only in situations when it is absolutely essential to do so. Because this analysis should occur within the context of the “best interest” examination, it should be undertaken from the child’s point of view, not the parent’s. A court should not ask whether termination is strictly necessary to further an objective of one of the parents; instead, courts should ask whether it is absolutely essential to the child’s best interest that a parent’s rights be permanently severed.

¶55 The “best interest” inquiry requires courts to examine all of the relevant facts and circumstances surrounding the child’s situation, not just the specific statutory grounds for termination. In particular, and as the juvenile court here recognized, this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, especially those in which grandparents or other family members have (or are willing to) come forward to care for the child, courts should consider whether other less-permanent arrangements (for instance, a guardianship with a family member) might serve the child’s needs just as well in the short term, while preserving the possibility for rehabilitation of the parent-child relationship in the longer term. In many cases, children will benefit from having more people—rather than fewer — in their lives who love them and care about them, and if there is a practical way to keep parents involved in the children’s lives that is not contrary to the children’s best interests, a court should seriously consider such an option. See In re A.H., 716 P.2d at 287 (stating that “[t]he termination of parental rights is a drastic measure that should be resorted to only in extreme cases”). As discussed above, a parent’s right to raise her child is a fundamental right, and although courts must view the “best interest” element from the perspective of the child, in so doing courts should not forget the constitutional dimension of the parental rights on the other side of the ledger. See In re Castillo, 632 P.2d at 856 (stating that “it is not our view . . . that the termination of parental rights can be decreed without giving serious consideration to the prior and fundamental right of a parent to rear his [or her] child”).

B

¶56 We are not persuaded, however, by Father’s argument that it can never be “strictly necessary” to terminate a parent’s rights if no pending adoption or similar change in the child’s permanent living situation is contemplated. Whether an adoption is pending is but one of many circumstances that a trial court must consider in determining whether termination of a parent’s rights is in the child’s best interest. See In re J.D., 2011 UT App 184, 1[ 23 (stating that “a child’s adoption status is only one factor to consider in the determination of the best interests of the children” (quotation simplified)). We certainly acknowledge that the absence of any proposed change in the child’s custody or living situation is a factor that may weigh against termination in some cases, including this one. See id. (stating that the juvenile court in that case had correctly “[a]cknowledg[ed] that the lack of an adoptive placement weighed against” termination). But the absolute rule that Father advances—that termination can never be “strictly necessary” without a pending adoption, no matter whatever other circumstances are present—goes too far.

¶57 Indeed, it is not at all difficult to imagine situations in which a parent’s actions toward the child are so abusive that it would be in the child’s best interest to terminate the parent’s rights, irrespective of the child’s prospects for another long-term living situation. See, e.g., In re J.A., 2018 UT App 29, 11 15, 21 (a juvenile court terminated a parent’s rights after finding, in a child abuse case in which the child suffered a brain injury, that the parent had severely abused one of the children, even though no change in the children’s custody situation was contemplated).

Accordingly, we cannot interpret the phrase “strictly necessary” in the manner Father urges.

C

¶58 Having clarified the contours of the termination of parental rights test, we finally turn our attention to whether the juvenile court correctly applied that test in this case. Father does not contest the existence of statutory grounds for termination of his parental rights, but argues that the juvenile court erred by determining that termination of his rights was in the Children’s best interests or strictly necessary. Father spends much of his energies asserting that it can never be “strictly necessary” to terminate a parent’s rights if there is no contemplated change in the affected child’s living situation, an argument we have already rejected, along with his argument that the “strictly necessary” language was intended to create a separate third element to the test for termination of parental rights.

¶59 However, given our holding that the “strictly necessary” analysis is properly part of the “best interest” element, we construe Father’s arguments regarding “strictly necessary” as a challenge to the juvenile court’s conclusion that termination of his rights was in the Children’s best interests. And although the juvenile court was on the right track for much of its “best interest” analysis, at one point even stating that it “struggle[d] with” the “almost automatically” language, its examination of the issues was framed by a test we have herein clarified and reformulated.[13]

¶60 For these reasons, we think it best to vacate the juvenile court’s termination order, and remand the case for reconsideration in light of this opinion. We do not, however, make any effort to urge the juvenile court to reach one conclusion or another upon reconsideration. We instruct the juvenile court to reconsider the “best interest” portion of the termination test, and to do so in keeping with the principles set forth herein, and without constraint from the “almost automatically” line of cases. We leave it to the juvenile court to determine whether a new evidentiary hearing is necessary, or whether it can adequately reassess “best interest” based on the evidence previously presented, aided by additional briefing and/or oral argument.

CONCLUSION

¶61 A parent’s right to raise his or her child is a fundamental right guaranteed by the federal and state constitutions. Our line of cases holding that termination of parental rights should follow in all cases “almost automatically” if one or more of the statutory grounds for termination of parental rights is present was ill-advised, unsupported by statute or case law, and in tension with the constitutional rights of parents. For the reasons set forth herein, we disavow that line of cases.

¶62 The test for termination of parental rights has two parts, and the second part—that termination of parental rights must be in the best interest of the affected child —must be considered on its own merits, separate from whether statutory grounds for termination are present. In considering the “best interest” element, trial courts should think carefully about whether termination of parental rights is “strictly necessary,” including whether other options short of termination exist that might adequately address the family’s issues.

¶63 Because we have disavowed a line of our cases and clarified the test for termination of parental rights, we vacate the juvenile court’s termination order, and remand this case to the juvenile court for further proceedings consistent with this opinion.

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

[1] On another occasion, our supreme court suggested — although it stopped short of deciding—that the second (“best interest”) part of the test might also be “constitutionally required.” See In re R.B.F.S., 2011 UT 46, ¶ 7 n.6, 258 P.3d 583. There, the court “note[d] that some courts have suggested that a best interests analysis may be constitutionally required before a child’s familial relationships can be terminated.” Id. (citing cases and authorities).

 

[2] See, e.g., In re K.W., 2018 UT App 44, ¶9I 29-31, 420 P.3d 82; In re B.A., 2017 UT App 202, ¶ 21, 407 P.3d 1053; In re P.B., 2017 UT App 82, ¶ 6, 397 P.3d 850; In re D.L., 2014 UT App 297, TT 3, 6, 342 P.3d 291; In re C.J., 2013 UT App 284, ¶8, 317 P.3d 475.

[3] As we discuss later in this opinion, see infra 42 & n.10, this court has been inconsistent in this area. Indeed, on one occasion, we specifically rejected the argument that a court should presume termination to be in the best interest of a child, if statutory grounds for termination are present. See In re R.A.J., 1999 UT App 329, ¶¶ 21-22, 991 P.2d 1118.

 

[4] Although Mother cited the “almost automatically” cases to the juvenile court, in her memoranda as well as at the hearing, no party cited or discussed those cases in their initial briefs filed on appeal. After oral argument, however, we invited supplemental briefing on various questions, including whether “this appeal can, in whole or in part, be resolved by resort to” our “almost automatically” line of cases, and whether “we ought to consider overruling or disavowing” that line of cases. The parties each filed supplemental briefs, with Father arguing that we should disavow those cases, and Mother and the guardian ad litem each arguing that we should apply those cases to affirm the juvenile court’s decision in this case.

[5] See supra ¶ 14 n.1 (citing In re R.B.F.S., 2011 UT 46, ¶ 7 n.6, and noting that “some courts have suggested that a best interests analysis may be constitutionally required before a child’s familial relationships can be terminated”).

[6] The availability of this equitable tool is important in all cases in which a movant seeks to terminate a parent’s rights, but perhaps especially so in cases involving private petitions (filed by someone other than the Utah Division of Child and Family Services (DCFS)) seeking to terminate the rights of a non­custodial parent. In many (but not necessarily all) cases in which DCFS seeks to terminate the rights of a custodial parent, that parent will likely have been offered (and not successfully taken advantage of) reunification services. See Utah Code Ann. § 78A­6-312(2)(b) (LexisNexis Supp. 2017) (stating that “[w]henever the court orders continued removal” of the child from the home, “the court shall first . . . determine whether . . . reunification services are appropriate”). In private cases where a petitioner seeks to terminate the rights of a non-custodial parent, by contrast, no statute requires the court to even consider whether to implement reunification services, and often no infrastructure is in place through which to offer any such services in any event. A rigorous “best interest” analysis sometimes presents the only meaningful opportunity that parents have to demonstrate to the court that, despite the existence of a statutory ground for termination, they have been recently engaged in significant efforts to improve their lives and remedy their past issues.

 

[7] During oral argument, the juvenile court appeared to espouse this third interpretation, stating that it considered the “strictly necessary” language to be “tied to the best interest analysis” and intended to require trial judges to ask themselves if “there is another feasible option here?” However, in its written ruling, the court ended up analyzing “strictly necessary” as a stand-alone third element.

[8] Moreover, even if the language could be considered part of a non-substantive statutory statement of policy, such statements still “provide guidance to the reader as to how the act should be enforced and interpreted,” and can be “used to clarify ambiguities.” See Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 23, 995 P.2d 1237. Even if construed as a “prefatory” statement of policy, the “strictly necessary” language still strikes us as inconsistent with a body of case law that declares termination of parental rights to follow “almost automatically” from a finding that statutory grounds for termination exist.

[9] The guardian ad litem asserts that the Utah Supreme Court has endorsed the “almost automatically” concept, and directs our attention to In re B.R., 2007 UT 82, 171 P.3d 435. We disagree with the guardian ad litem’s reading of that case. The opinion in B.R. contains no mention of or citation to any of our “almost automatically” cases. Moreover, the fact-bound holding of In re B.R. —reversing our decision to overturn a juvenile court’s termination order—cannot be construed as supporting the general notion that, once grounds for termination are adjudged to be present, it follows “almost automatically” that the best interest of the child will be served by termination.

[10] See, e.g., In re Adoption of T.H., 2007 UT App 341, 1 10, 171 P.3d 480 (stating that “even assuming that proper grounds to terminate [the father’s] parental rights existed under [the statute], [the stepfather’s] failure to provide clear and convincing evidence that it would be in [the child’s] best interests to terminate [the father’s] parental rights is a fatal defect to termination”); In re E.R., 2001 UT App 66, 1 13, 21 P.3d 680 (stating that “[i]t is conceivable that grounds for termination may exist, but termination nonetheless is not in the best interest of the children”).

[11] Although the “almost automatically” concept was first introduced in In re J.R.T., 750 P.2d 1234, 1238 (Utah Ct. App. 1988), that case did not use the phrase “almost automatically.” The first time that language appeared was in a concurring opinion over two decades later. See In re J.D., 2011 UT App 184, ¶ 34, 257 P.3d 1062 (Orme, J., concurring). In that case, the majority did not ratify the “almost automatically” concept. See id. 127. Moreover, the concurring opinion included a “but see” citation to In re R.A.J., appearing to acknowledge that our holding in In re R.A.J. was contrary to the conclusions reached in the concurring opinion. See id. ¶34 (Orme, J., concurring) (citing In re R.A.J., 1999 UT App 329, ¶¶ 21-22, 991 P.2d 1118). In In re A.M.O., we cited In re R.A.J., see In re A.M.O., 2014 UT App 171, ¶18, 332 P.3d 372, but only as an example of the kind of “rare” case in which termination is not in the best interest of the child despite the existence of statutory grounds for termination. In In re Z.J., 2017 UT App 118, ¶3, 400 P.3d 1230 (per curiam), we likewise cited to In re R.A.J., and did so for the proposition that “Utah law requires a court to make two distinct findings before terminating a parent-child relationship,” id. (quotation simplified), but did not discuss In re R.A.J.’s contrary holding in connection with our reference to the “almost automatically” principle, id. ¶9.

[12] Those cases include the following: In re Z.J., 2017 UT App 118, ¶ 9; In re G.J.C., 2016 UT App 147, ¶25; In re A.M.O., 2014 UT App 171, ¶20; In re D.R.A., 2011 UT App 397, ¶ 21, 266 P.3d 844; In re J.R. T., 750 P.2d at 1238.

[13] Indeed, Mother specifically argued in her written briefing to the juvenile court that “where grounds for termination are established such as [in] the instant case, the conclusion that termination will be in the child’s best interests will follow almost automatically,” and in support cited this court’s decision in In re Z.J., 2017 UT App 118, ¶9. Moreover, at the hearing, Mother’s counsel argued that the “almost automatically” line of cases applied in this case and compelled the termination of Father’s rights, and the juvenile court considered that authority and discussed it with counsel at the hearing. In this opinion we have disavowed the “almost automatically” line of cases, specifically including In re Z.J., and to the extent the juvenile court relied upon those cases, its conclusions require reconsideration.

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