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2023 UT App 55 – In re F.C.G.

2023 UT App 55 – In re F.C.G.

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF F.C.G.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

L.C.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20221129-CA

Filed May 25, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1205462

Julie J. Nelson Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce Guardian ad Litem

Before JUDGES GREGORY K. ORME,

MICHELE M. CHRISTIANSEN FORSTER, and AMY J. OLIVER.

PER CURIAM:

¶1        L.C.G. (Mother) appeals the juvenile court’s order terminating her parental rights. We affirm.

¶2        “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified). First, a court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (quotation simplified). “Second, “a court must find that termination of the parent’s rights is in the best interest of the child.” Id. Because a parent’s rights are constitutionally protected, a court may terminate parental rights only if it finds that termination is strictly necessary for the best interest of a child. See id.

¶3 Mother does not challenge the juvenile court’s determination that there were statutory grounds supporting the termination of her parental rights, or the court’s determination that doing so was strictly necessary and in F.C.G.’s (Child) best interest. However, the record supports the juvenile court’s determination that there were statutory grounds supporting the termination of Mother’s parental rights, that termination was strictly necessary, and that terminating Mother’s rights was in Child’s best interest.

¶4        Instead, Mother asserts that the juvenile court erred by determining that she waived her right to counsel, and by permitting counsel to withdraw at trial. Specifically, Mother asserts that the juvenile court violated rule 53(c) of the Utah Rules of Juvenile Procedure and her due process rights by permitting counsel’s withdrawal. “We review waiver of a statutory right to counsel for correctness but grant the trial court a reasonable measure of discretion when applying the law to the facts.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (quotation simplified). The “termination of parental rights involves a statutory right to counsel, not a constitutional right to counsel. See id. Accordingly, “waiver of a statutory right to counsel is proper as long as the record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” Id. (quotation simplified).

¶5        Rule 53(c) provides that a motion to withdraw may be made orally before the court, and counsel’s request to withdraw should demonstrate a parent’s familiarity with his or her right to counsel, the withdrawal of counsel, the right to appeal, and post-judgment motions. Utah R. Juv. P. 53(c)(1). The record demonstrates that Mother was aware of the rights identified in rule 53(c). On November 30, 2021, the juvenile court appointed counsel for Mother. Based on Mother’s lack of contact with counsel, and her failure to meaningfully participate in the proceeding, the court permitted counsel to withdraw.

¶6        On October 13, 2022, Mother appeared at the termination trial. Knowing that counsel had been permitted to withdraw, Mother once again requested the appointment of counsel. The juvenile court re-appointed Mother’s counsel and continued the trial until December 12, 2022, so that Mother could participate in trial preparations and trial. The court scheduled a pretrial hearing for November 7, 2022. Mother failed to appear at the pretrial hearing. Mother also failed to appear at the December 12, 2022 trial.

¶7        The court determined that Mother received notice of both the pretrial hearing and the continued trial when she appeared on October 13, 2022. Mother failed to communicate with counsel and assist in trial preparations. Mother’s counsel attempted to contact Mother at least twelve times prior to the continued trial. Mother’s counsel received only one email from Mother, but it was not substantive, and it did not address any of counsel’s “questions or advice or anything that I had given to her.” The court determined that based on Mother’s nonappearances in court, plus her lack of contact with counsel, Mother waived her right to counsel.

¶8        Mother next argues that the court violated her due process rights. Specifically, she argues that she had a constitutional right to counsel, beyond that of a statutory right to counsel. Mother asserts that “the Utah Supreme Court determined that, under certain factual circumstances, a parent facing termination of their parental rights has a right to counsel under the Due Process Clause of the Fourteenth Amendment of the federal constitution.” In re adoption of K.A.S., 2016 UT 55, ¶ 35, 390 P.3d 278. Mother argues that a constitutional right to counsel requires a heightened showing that a parent knowingly and voluntarily waived the right to counsel, rather than whether the “record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” In re A.B., 2017 UT App 99, ¶ 5.

¶9        Mother acknowledges that the Supreme Court did not hold that parents are always entitled to the constitutional right to counsel. The Supreme Court determined that “where, for example, the parent has not taken an interest in the proceedings and the weight of the evidence of the parent’s lack of interest is great—the presumption against the right to counsel will not be overcome.” In re adoption of K.A.S., 2016 UT 55, ¶ 38 (quotation simplified). Given the juvenile court’s determinations regarding Mother’s nonappearances in court, her lack of contact with counsel, and her lack of participation, the record supports the juvenile court’s determination that Mother did not take an interest in the proceedings, and the weight of the evidence of Mother’s lack of interest is great. The record does not support that Mother had a constitutional right to counsel, or that the court erred in its waiver determination and allowing counsel to withdraw.

¶10      Mother next asserts that she received ineffective assistance of counsel when counsel withdrew, rather than requesting another trial continuance or additional appointment of counsel. To prevail on an ineffective assistance of counsel claim, Appellant must show: (1) her counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 669, 687 (1984); In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (applying Strickland to an ineffective assistance of counsel claim in a child welfare proceeding). To demonstrate deficient performance, Mother must persuade this court that, considering the record as a whole, counsel’s performance was objectively unreasonable. State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. To demonstrate prejudice, Mother must show that “there exists a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.” State v. Florez, 2020 UT App 76, ¶ 43, 465 P.3d 307.

¶11      Mother asserts that counsel was deficient because he did not adequately comply with rule 53(c) of the Utah Rules of Juvenile Procedure. However, as addressed above, it was apparent from the record that Mother was familiar with her rights identified in rule 53(c). See Utah R. Juv. P. 53(c)(1)(iii). Counsel had been appointed twice in Mother’s proceeding, and the court permitted counsel’s withdrawal due to Mother’s refusal to communicate with counsel, participate, and to attend court. Counsel’s decision to withdraw, rather than request yet another continuance or additional counsel was not deficient. “Because the decision not to pursue a futile motion is almost always a sound trial strategy, counsel’s failure to make a motion that would be futile if raised does not constitute deficient performance.” State v. Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705. Given the required short time frames in child welfare cases, Mother’s nonappearances, lack of communication with counsel, and her lack of participation, the record does not support Mother’s claim that counsel was ineffective for declining to request yet another continuance or requesting that the court appoint another attorney.

¶12      Mother next argues that the doctrine of structural prejudice suggests that she was prejudiced when counsel withdrew at trial. See State v. Bond, 2015 UT 88, ¶ 40, 361 P.3d 104. To satisfy this part of Strickland’s test, Mother must demonstrate particularized prejudice in her specific case. See State v. Juarez, 2021 UT App 53, ¶ 27, 489 P.3d 231. “Allegations of structural prejudice, or prejudice per se, are generally insufficient in the context of an ineffective assistance claim.” Id. (quotation simplified). However, we need not address both components of the Strickland inquiry if we determine that Mother made an insufficient showing on either prong. See id. ¶ 26. Because the record does not support Mother’s claim that counsel was deficient, we need not address this claim. See id.

¶13      The juvenile court’s order terminating Mother’s parental rights is affirmed.

 

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

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Should I file for a no-fault divorce or for an uncontested divorce? 

My spouse and I have no children together and own no property together. Should I file for a no-fault divorce or for an uncontested divorce? 

It’s not a question of choosing between “no-fault divorce” and “uncontested divorce”. These two terms are not opposites. 

No-fault divorce means that you don’t have to accuse your spouse of committing some kind of marital fault before you can seek a divorce from your spouse. The reason no-fault divorce is called no-fault divorce is because prior to the creation of no-fault divorce laws, you could not get divorced unless you are able to prove your spouse committed some kind of marital fault during the marriage. And what does “marital fault” mean? Marital fault includes things like adultery, desertion and abandonment, physical abuse, extreme mental and emotional cruelty, habitual drunkenness or impairment from the abuse of other substances, conviction of a serious crime or incarceration, failure to provide one spouse with the necessities of life, and insanity. 

Back in the late 60s, various governments in the United States realized that there are many miserable marriages that could and should end in divorce but that did not qualify under any of the fault bases for divorce. That is what led to the creation of no-fault divorce, by which one can obtain a divorce simply by asserting that there are irreconcilable differences between spouses that render the marriage irretrievably broken prevent the marriage from continuing. 

An uncontested divorce is a divorce in which all of the issues in in the divorce action, including child custody and visitation (parent time), division of marital assets and responsibility for marital debts, etc. are resolved by the agreement of the parties through settlement as opposed to litigating those issues and having the matter decided by a judge after a trial. 

So if you and your spouse both agree that you don’t want to stay married and believe that you can agree to resolve all of the issues in your divorce without needing to fight with each other and litigate at trial, you can drop a settlement agreement and base your divorce upon the terms of your settlement agreement, without having to go to trial and have the judge determine the outcome. 

No-fault divorces can be uncontested divorces. That stated, not all no-fault divorces are uncontested, as one can file for divorce on a no-fault basis, but may still find himself or herself arguing with his or her spouse over various issues that will end up decided by a judge, if the parties cannot settle those issues by agreement between themselves. 

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

https://www.quora.com/Me-and-my-husband-we-have-no-kids-together-nor-a-property-that-we-own-so-I-was-wonder-if-I-should-filing-no-fault-divorce-or-uncontested-divorce-We-been-separating-for-2-year-and-haven-t-contact-each-other-since/answer/Eric-Johnson-311  

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What are the grounds for filing for a divorce in Utah?

First, you need to understand that Utah, like every other state in the U.S. has what are known as a “no-fault divorce law”. No-fault divorce means that you don’t have to plead or show that your spouse committed any kind of marital “fault” to obtain a divorce. Previous to the creation of no-fault divorce laws, you could not get a divorce unless you could prove your spouse had committed one or more of the recognized faults constituting grounds for divorce.  

Utah’s no-fault ground for divorce is the “irreconcilable differences of the marriage” basis (Utah Code § 30-3-1(h)). If you assert irreconcilable differences as your ground for divorce, you do not have to prove any kind of fault to obtain a divorce on that ground. Because it doesn’t matter whether your spouse wants a divorce too– you can prove that there are irreconcilable differences of the marriage by simply saying that you subjectively feel that there are irreconcilable differences. Sometimes a court might ask you to explain in more detail what the irreconcilable differences in your marriage are, but courts will accept something as simple and ambiguous statements like “we are not compatible anymore” or “our differences prevent the marriage from continuing” or “our differences have rendered the marriage unsalvageable”.  

Fault-based grounds for divorce still exist, which means that one can still assert one or more of these faults as grounds for divorce, but it’s not necessary to assert fault-based grounds to obtain a divorce. 

I have provided for you below Section 30-3-1 of the Utah Code, which articulates both the no-fault ground and all the other legally recognized grounds for divorce in Utah. 

Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter. 

(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. 

(3) Grounds for divorce: 

(a) impotency of the respondent at the time of marriage; 

(b) adultery committed by the respondent subsequent to marriage; 

(c) willful desertion of the petitioner by the respondent for more than one year; 

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; 

(e) habitual drunkenness of the respondent; 

(f) conviction of the respondent for a felony; 

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; 

(h) irreconcilable differences of the marriage; 

(i) incurable insanity; or 

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation. 

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

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My ex allows our children to watch TikTok. Is this grounds for seeking full custody?

My ex allows our children to watch TikTok. Is this grounds for seeking full custody?

I forbade my child from watching TikTok because I worry it lowers IQ.

However, my ex-spouse allows them to use it at their house. Is this child endangerment grounds for a lawsuit for full custody?

In my professional opinion (and remember, I’m not your attorney, I’m just sharing my opinion, so if you want to know what the law in your jurisdiction is and how it applies, consult a local attorney), no. Now if you could prove the child is watching pornographic TikTok videos or heinously violent TikTok videos while in the other parent’s care and custody or other videos that are so clearly inappropriate and harmful to child as to shock the conscience and cause a reasonable person to conclude that the child is clearly being seriously harmed as a result, then you may have grounds for asking a court to intervene and to take steps to protect the child, but that probably does not constitute sufficient not grounds for seeking sole legal and/or physical custody of the child.

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

https://www.quora.com/I-forbade-my-child-from-watching-TikTok-because-I-worry-it-lowers-IQ-However-my-ex-spouse-allows-them-to-use-it-at-their-house-Is-this-child-endangerment-grounds-for-a-lawsuit-for-full-custody/answer/Eric-Johnson-311

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How do you divorce when your doesn’t want to go through with it?

How do you divorce when your doesn’t want to go through with it? Does it require both parties to cooperate?

I cannot speak for all jurisdictions, but here is the answer for Utah, the jurisdiction where I practice divorce and family law (though my best guess is that this applies to all jurisdictions):

Can you divorce your spouse if he/she doesn’t want a divorce? Yes, no question about it. You have an absolute right to a divorce, if you want a divorce. This is what a “no-fault divorce” is. Many people believe that “no-fault divorce” means many things it does not.

Some believe “no fault divorce” means “hey, spouse, you can’t divorce me because I’ve done nothing wrong, I’ve committed no fault.” No, that’s not what it means.

Some believe “no fault divorce” means “hey, spouse, can divorce you because I’ve done nothing wrong, I’ve committed no fault.” That’s not what it means either.

No-fault divorce means this: you can get a divorce regardless of whether your spouse has committed any marital fault. What does this mean, and what is “marital fault”?

  • It means:
    • that before the no-fault divorce law was passed by the legislature the only way one could obtain a decree of divorce was by proving his/her spouse was “at fault”. If your spouse had not committed a marital fault, then you couldn’t get a divorce no matter how much you wanted a divorce. Marital fault-based grounds for divorce still exist in some states*, they are just not the only way one can qualify to get a divorce.
    • that with the passing of a no-fault divorce law, now one can obtain a divorce on the grounds of “irreconcilable differences,” which means that as long as you claim (claim, not prove—after all, how could it be proven or disproven?) that there are “irreconcilable differences” between you and your spouse that render the marriage irretrievably broken, you can get a divorce.
  • Marital fault is any of the following grounds for divorce at common law. I will list the grounds that Utah recognizes first, plus some other grounds that other jurisdictions recognize as “fault”-based grounds for divorce:
    • Utah:
      • impotency of the respondent at the time of marriage;
      • adultery committed by the respondent subsequent to marriage;
      • willful desertion of the petitioner by the respondent for more than one year;
      • willful neglect of the respondent to provide for the petitioner the common necessaries of life;
      • habitual drunkenness of the respondent;
      • conviction of the respondent for a felony;
      • cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
      • incurable insanity; or
      • when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
    • Other fault-based grounds
      • abandonment for a certain length of time;
      • bigamy;
      • conviction of felony;
      • criminal conviction of a felony or imprisonment of one party for a certain length of time;
      • cruelty;
      • desertion (actual desertion, constructive desertion);
      • fraud;
      • habitual intemperance or alcoholism that makes you unable to attend to business or inflicts mental anguish on the non-alcoholic spouse;
      • homosexuality (for heterosexual married couples) of the other party that was not discussed before the union;
      • incest;
      • infertility;
      • mental instability of one of the parties;
      • permanently insanity of spouse (this can be demonstrated by regular confinement within a psychiatric facility in any state or country for at least three years before filing for divorce);
      • separation for a certain minimal period of time;
      • transmission of a sexually transmitted disease by one spouse to the innocent spouse;
      • where a spouse’s joining of a religious sect leads to the destruction of the marriage, then the objecting partner can cite the episode as grounds for divorce;
      • willful desertion;
      • willful neglect of the husband not providing his wife the common needs like foods and shelter;
      • your spouse is physically unable to have sexual intercourse;
      • your spouse’s institutionalization for mental illness

————————————————————————-

Pure no-fault divorce states (according to LegalZoom):

  • California
  • Colorado
  • District of Columbia
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • Oregon
  • Washington
  • Wisconsin

———————————

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

https://www.quora.com/How-do-you-divorce-someone-when-one-of-the-people-doesn-t-want-to-go-through-with-it-Does-it-require-both-parties-to-cooperate/answer/Eric-Johnson-311

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Are irreconcilable differences the same as an at-fault divorce?

No.

There are two kind of grounds for divorce: fault and no-fault. Irreconcilable differences are an example of no-fault grounds for divorce.

Before no-fault divorce laws were passed (and every state in the United States of America now allows divorce on a no-fault basis), a husband or wife could not obtain a divorce unless he/she could prove that his or her spouse had committed marital fault.

No, really. I’m not kidding. It got to the point that spouses we didn’t have fault-based grounds for divorce, but wanted a divorce nevertheless, would collude with each other and perjure themselves to commit fraud on the court: the husband or would would agree to claim, falsely that he/she committed adultery (or some other fault), and the other spouse would go along with the sham. Together they would represent to the court that a divorce was warranted on the basis of adultery that never took place, simply so they could get divorce from one another. lawmakers, realizing that this was happening, and realizing that there were many people in need of a divorce who could not qualify under existing laws, responded with the passage of no-fault divorce laws.

Fault-based grounds for divorce are those that allege that your spouse has committed one or more kinds of wrongs that would entitle you to a divorce.

No-fault grounds are those that allege that you don’t need or want to allege that your spouse has done anything wrong such that you are entitled to a divorce; instead, alleging no-fault grounds means that you just want out of the marriage, without having to blame your spouse as an excuse for getting divorced.

Fault-based grounds for divorce can vary from state to state, but generally the “marital faults” that qualify include:

  • impotency of the respondent at the time of marriage;
  • adultery committed by the respondent subsequent to marriage;
  • willful desertion of the petitioner by the respondent for more than one year;
  • willful neglect of the respondent to provide for the petitioner the common necessaries of life;
  • habitual drunkenness of the respondent;
  • conviction of the respondent for a felony;
  • cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
  • incurable insanity; or
  • when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.

See Utah Code § 30-3-1(3)

Other historical fault-based grounds for divorce include:

  • existence of a loathsome disease concealed from the other spouse at the time of marriage were contracted afterwards
  • substance abuse other than and/or in addition to alcohol abuse
  • bigamy
  • impotence
  • force or fraud
  • mental illness
  • carnal abandonment (refusing to have a reasonable amount of sexual intercourse with one’s spouse)
  • infertility (particularly if your infertility was known and you concealed the fact before marriage)
  • sexual orientation ( g., you are heterosexual and you discover that your spouse is homosexual)
  • changing religions after marriage or abandoning one’s religious faith after marriage

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

https://www.quora.com/Are-irreconcilable-differences-the-same-as-an-at-fault-divorce/answer/Eric-Johnson-311

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What is the difference between a divorce and an annulment?

Many couples may wonder if they can seek an annulment rather than going through the divorce process.

So what is the difference between an annulment and a divorce?

The primary difference between a divorce and an annulment is that a divorce formally ends a marriage. An annulment on the other hand, declares a marriage as “invalid,” null and void.

A Utah court may order a marriage annulled only in a limited number of circumstances:

30-1-17.1.  Annulment – Grounds for.

A marriage may be annulled for any of the following causes existing at the time of the marriage:

(1) When the marriage is prohibited or void under Title 30, Chapter 1, Marriage.

(2) Upon grounds existing at common law.

Marriages prohibited by law are fairly rare occurrences, but if you want to see if perhaps your marriage is one of them, see Utah Code § 30-1-1 and § 30-1-2[1]

So what are the “common law” grounds for annulment?

It’s really hard to say! I have researched this subject many times, and I can’t find an article or treatise that comes right out and states, “here’s what the common law grounds for annulment are or were historically.” Here is the best I can find:

In no particular order (and without claiming this is an exhaustive list):

  • Fraud[2]
  • Unlawful Marriages (incestuous, bigamous)
  • Duress; Undue Influence
  • Physical or Mental Incapacity (impotence, incapable of contracting for want of understanding, temporary insanity, intoxication that so greatly impaired the mental abilities of a party as to render that party incapable of assenting to the marriage)

Interesting tidbit from 4 Am. Jur. 2d Annulment of Marriage § 3 (Grounds for annulment of marriage, generally): “While it is the function of the legislature, and not of the judiciary, to establish new grounds for the annulment of marriages,[3] the fact that a statute enumerates certain grounds for annulling a marriage has been held not to necessarily imply that no others exist.[4]

Bottom line: few people wanting to end a marriage qualify for an annulment. For most people, divorce is their only option to bring about an end to their marriage by court action.

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

[1] 30-1-2.  Marriages prohibited and void:

The following marriages are prohibited and declared void:

(1) when there is a husband or wife living, from whom the person marrying has not been divorced;

(2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;

(3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;

(4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and

(5) between persons of the same sex.

Utah Code § 30-1-1.  Incestuous marriages void:

(1) The following marriages are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate:

(a) marriages between parents and children;

(b) marriages between ancestors and descendants of every degree;

(c) marriages between brothers and sisters of the half as well as the whole blood;

(d) marriages between uncles and nieces or aunts and nephews;

(e) marriages between first cousins, except as provided in Subsection (2); or

(f) marriages between any persons related to each other within and not including the fifth degree of consanguinity computed according to the rules of the civil law, except as provided in Subsection (2).

(2) First cousins may marry under the following circumstances:

(a) both parties are 65 years of age or older; or

(b) if both parties are 55 years of age or older, upon a finding by the district court, located in the district in which either party resides, that either party is unable to reproduce.

[2] Haacke v. Glenn, 814 P.2d 1157 (Court of Appeals of Utah 1991):

Under common law, a marriage could be annulled for a fraud going to the essence of the marriage. Wolfe v. Wolfe, 62 Ill.App.3d 498, 19 Ill.Dec. 306, 309, 378 N.E.2d 1181, 1184 (1978); Avnery v. Avnery, 50 A.D.2d 806, 375 N.Y.S.2d 888, 890 (1975); Douglass v. Douglass, 148 Cal.App.2d 867, 307 P.2d 674, 675 (1957); Bing Gee v. Chan Lai Yung Gee, 89 Cal.App.2d 877, 202 P.2d 360, 364 (1949). The fraud must be such that directly affects the marriage relationship rather than “merely such fraud as would be sufficient to rescind an ordinary civil contract.” Bing Gee, 202 P.2d at 364. The misrepresentation must go to present and not future facts. Wolfe, 19 Ill.Dec. at 310, 378 N.E.2d at 1185. Further, the fraud must be material to such a degree that, had the deceived party known of the fraud, he or she would not have consented to the marriage. Avnery, 375 N.Y.S.2d at 890. “The test in all cases is whether the false representations or concealment were such as to defeat the essential purpose of the injured spouse inherent in the contracting of a marriage.” Douglass, 307 P.2d at 675.

As to the form the fraud takes, it may “consist of an affirmative false representation or the withholding of the truth when it should be disclosed.” Costello v. Porzelt, 116 N.J.Super. 380, 282 A.2d 432, 434 (1971).

In determining fraud, courts have adopted a subjective standard and have considered the facts of the particular marriage. Wolfe, 19 Ill.Dec. at 311, 378 N.E.2d at 1186 (where husband concealed his prior marital history from Roman Catholic wife); Costello, 282 A.2d 432 (where husband omitted to tell wife of his heroin addiction); *1159 Lamberti v. Lamberti, 77 Cal.Rptr. 430, 432, 272 Cal.App.2d 482 (1969) (where husband’s secret intent in marrying was to acquire an advantageous alien status and where he falsely promised to go through a subsequent religious ceremony); Parks v. Parks, 418 S.W.2d 726 (Ky.1967) (where wife falsely represented at time of marriage that she was pregnant); Kober v. Kober, 16 N.Y.2d 191, 211 N.E.2d 817, 264 N.Y.S.2d 364 (1965) (where husband failed to disclose his extreme anti-Semitism to wife); Handley v. Handley, 179 Cal.App.2d 742, 3 Cal.Rptr. 910 (1960) (where wife secretly intended not to live with husband and not to adopt his name); Osborne v. Osborne, 134 A.2d 438 (D.C.1957) (where husband secretly intended not to live with his wife); Rathburn v. Rathburn, 138 Cal.App.2d 568, 292 P.2d 274, 277 (1956) (where wife secretly intended not to consummate the marriage); Vileta v. Vileta,53 Cal.App.2d 794, 128 P.2d 376, 377 (1942) (where wife did not disclose her infertility); Rubman v. Rubman, 140 Misc. 658, 251 N.Y.S. 474 (1931) (where husband falsely told wife he loved her and did not disclose that real reason for marriage was to avoid deportation). See also Leventhal v. Liberman, 262 N.Y. 209, 186 N.E. 675 (1933) (where husband did not disclose he had tuberculosis and was a narcotics addict).

[3] Patey v. Peaslee, 99 N.H. 335, 111 A.2d 194, 47 A.L.R.2d 1388 (1955).

[4] Browning v. Browning, 89 Kan. 98, 130 P. 852 (1913).

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