Tag: judge

How likely is a judge to give the non-custodial parent 50-50 parenting time after the primary custodial parent has been the primary parent for three years?

Before you read another word, know this: the answer in these situations is, “It depends on many and varying factors.” Nobody likes that kind of answer, but it’s the truth here.

Consult several attorneys in your jurisdiction about whether you may have a good case for a change of custody, if you believe you may. Many attorneys who consider themselves or bill themselves as “good and knowledgeable” attorneys on this subject don’t really know. Get second, third, and fourth opinions (but be warned: if an attorney tells you what sounds too good to be true, it likely is too good to be true and is being told to you to part you from your money).

Generally speaking, if no circumstances pertaining to the child custody award have changed substantially and materially during that three-year period, it is highly unlikely that the court would modify the child custody award and award the non-custodial parent custody of the children.

So, just what is a substantial and material change in circumstances pertaining to the child custody award? I cannot speak to how all jurisdictions define it, but in Utah (where I practice divorce and family law), the substantial and material change in circumstances that will lead to a change in the child custody award is overwhelmingly a change for the worse in the custodial parent’s circumstances. Even if the non-custodial parent could indisputably prove that he/she has significantly bettered himself/herself as a parent, if the custodial parent has become no worse than he/she was when the custody award was originally made, if his/her circumstances are substantially unchanged, then a modification custody will not likely be deemed appropriate or in the best interest of the child(ren).

But what if a court expressly stated that a parent was not awarded sole or joint custody due to suffering from some defect, that but for that defect he/she would have been awarded custody, and that the parent has since remedied the defect? In Utah, that could be a basis for modifying the child custody award. (See Hogge v. Hogge, 649 P.2d 51 (Supreme Court of Utah 1982)

If neither parent’s circumstances have substantially and materially changed, but the child’s circumstances have substantially and materially changed since the original custody award was made such that it would be in the child’s best interest for custody of the child to change, that could be a legitimate basis for seeking to modify the child custody award.

Utah Family Law, LC | | 801-466-9277

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Last Week, My Ex Came Into Family Court Smelling of Pot but Still the Judge Favors Her Over Me. What Can I Do?

Does your jurisdiction permit people to make use of marijuana recreationally? Or to make use of it with a doctor’s prescription or a “medical marijuana card”? If so, then smelling of marijuana may not be enough to cause a court concern.

Otherwise, did you bring your ex smelling of marijuana to the court’s attention? You certainly could have. If you have another court hearing or other appearance coming up, and if your ex shows up smelling of marijuana again, you can certainly speak up and express your concern that your ex may be making illegal use of marijuana and/or abusing marijuana.

Utah Family Law, LC | | 801-466-9277

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How Long Does a Child Custody Court Hearing Take?

rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.

If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.

Utah Family Law, LC | | 801-466-9277

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Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

Utah Family Law, LC | | 801-466-9277

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How do I file a response in a divorce if the summons is invalid?

How do I file a response in a divorce if missing the court’s address for filing invalidates the summons?

Be very careful getting cute with procedural technicalities. If you were served with a summons that is defective only because it does not include the address of the courthouse where the underlying action was filed, you may or may not have an argument for defective service of process. But to test that theory you may have to take the risk of being defaulted and then moving to set aside the default and default judgment and hoping you prevail on that motion. That is not a risk I would be willing to take myself. 

What you need to do immediately is consult a good attorney (i.e., a knowledgeable, skilled one) and fast, i.e., before the time in which to file a responsive pleading has expired, so that if you, after conferring with at least one good attorney, determine you need to file something with the court before the responsive pleading time expires you can. 

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

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What’s it called when a judge gives a party an illegal advantage?

I believe one term you may be thinking of is “prejudice.” The word “prejudice” has a particular meaning in the law. According to Black’s Law Dictionary (the bible of legal definitions): 

2. A preconceived judgment or opinion formed with
little or no factual basis; a strong and unreasonable dislike or distrust. —
Also termed preconception. — prejudice, vb. 

Prejudice literally means “pre judge”. According to 

prejudice (n.)

c. 1300, “despite, contempt,” from Old French prejudice ”a prejudice, prejudgment; damage” (13c.) and directly from Medieval Latin prejudicium ”injustice,” from Latin praeiudicium ”prior judgment, judicial examination before trial; damage, harm,” from prae- ”before” (see pre-) + iudicium ”judgment,” from iudex (genitive iudicis) “a judge” (see judge (n.)).

Meaning “injury, physical harm” is mid-14c., as is the legal sense of “detriment or damage caused by the violation of a legal right.” Meaning “preconceived opinion” (especially but not necessarily unfavorable) is from late 14c. in English; now usually “decision formed without due examination of the facts or arguments necessary to a just and impartial decision.” To terminate with extreme prejudice ”kill” is by 1972, said to be CIA jargon. 

prejudice (v.) 

mid-15c., prejudicen, “to injure or be detrimental to,” from prejudice (n.) and from Old French prejudiciier. The meaning “to affect or fill with prejudice, create a prejudice (against)” is from c. 1600. Related: Prejudiced; prejudicing. 

Entries linking to prejudice 


word-forming element meaning “before,” from Old French pre- and Medieval Latin pre-, both from Latin prae (adverb and preposition) “before in time or place,” from PIE *peri- (source also of Oscan prai, Umbrian pre, Sanskrit pare ”thereupon,” Greek parai ”at,” Gaulish are- ”at, before,” Lithuanian prie ”at,” Old Church Slavonic pri ”at,” Gothic faura, Old English fore ”before”), extended form of root *per- (1) “forward,” hence “beyond, in front of, before.” 

The Latin word was active in forming verbs. Also see prae-. Sometimes in Middle English muddled with words in pro- or per-. 

judge (n.) 

mid-14c., “public officer appointed to administer the law” (early 13c. as a surname), also judge-man; from Old French juge, from Latin iudex ”one who declares the law” (source also of Spanish juez, Italian giudice), a compound of ius ”right, law” (see just (adj.)) + root of dicere ”to say” (from PIE root *deik- ”to show,” also “pronounce solemnly”).

Extended from late 14c. to persons to decide any sort of contest; from 1550s as “one qualified to pronounce opinion.” In Jewish history, it refers to a war leader vested with temporary power (as in Book of Judges), from Latin iudex being used to translate Hebrew shophet. 

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

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Is there anything that can surprise a judge during a divorce proceeding?

Is there anything that can surprise a judge during a contested divorce proceeding?  

Of course.  

We’ve all read about cases where all of the circumstantial evidence indicated the defendant is guilty, only to be surprised in the eleventh hour some piece of evidence that conclusively proves he couldn’t be guilty, but that someone else is the perpetrator.  

We know, sadly, of people mistakenly or wrongfully convicted, which often comes as a surprise (because we hate the idea that the justice system can be and in such cases is corrupt at one or more levels): 

And we’ve all, unfortunately, learned of cases where the defendant was falsely accused, which surprises some. See: 

Of course. I will describe one common way a judge can be surprised (especially in divorce and family law cases): like all of us, judges have their own worldviews based upon their individual personal experiences, what they were taught as they grew up, their own beliefs and biases. A good judge tries to be as aware as possible of these things, so that he/she will not take a subject approach to the case but will follow where the evidence leads according to what the law dictates.  

One of the things that many subjective-minded judges tend to do in divorce and child custody disputes is believe the woman/mother to be: 

  • honest 
  • the better parent of the two 
  • financially dependent on her husband 
  • under the husband’s explicit or implicit control (whether that be financially, emotionally/psychologically, physically, or both) 
    • victimized in some way (whether great or small) by the husband, if the wife claims to have been. Extremely common examples: “He controlled all the money, wouldn’t tell me how much/how little we had, and wouldn’t give me any to spend,” and/or “He forbade me from having a job,” and/or “He physically/sexually/emotionally abused me and/or the children,” and/or “He forced me to engage in sexual acts that I found objectionable/humiliating,” and/or “He never shared in the household chores and childrearing.” 

Don’t get me wrong; many wives/mothers are all of these things, but not always. But 25 years as a divorce and family lawyer I can tell you that in my experiences some judges presume the women to be some of these things simply by virtue of them being women, and if the wife/mother makes claims to being any of these things, the judge will often treat such claims as “prima facie” established until the husband/father refutes/rebuts them.  

Consequently, it often surprises some such judges when a husband/father proves* that, while he is not perfect: 

  • he is honest and/or the wife/mother has been lying about him or on the subject of other issues in the divorce and/or child custody case. 
  • he is either just as good a parent as his wife or the better parent of the two 
    • and if he proves he’s the better parent, that often comes as so big of a shock to some courts that the court cannot/will not bring itself to accept such a concept, let alone such a fact 
  • that if the wife/mother is in fact financially dependent on him (as many wives often are, though decreasingly so in modern society), he has been forthright and transparent about financial matters with his wife  
  • that he does not exercise any kind of force or control over his wife and/or children but is decent, loving, and treats all of his family members fairly and well 

*Getting over that bar is often extremely difficult, sometimes impossible for some husbands/fathers with some judges.  

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

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What is the argument for hearing a child’s view in a custody decision?

What argument supports taking the views of a child into account when making custody determination?

The argument is this: the judge cannot determine if such evidence is relevant if the judge never actually has such evidence to consider. 

In Utah (where I practice divorce and family law), this was the law as late as 1967 in this part of Utah Code Section 30-3-5: 

When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper. 

You read that correctly. Time was in Utah (and I’m sure in many other states) that children 10 years of age or older got to choose which parent they lived with after divorce (back in a time when it was unthinkable to award joint custody of children to parents). Utah (and I’m sure most other states) no longer give the child the choice regarding the child custody award. That’s a good development, but Utah went too far and now rarely (so rarely it might as well be never) hear their experiences, observations, opinions, and desires regarding custody. 

In Utah, those who have the greatest stake in the child custody award (i.e., the children themselves) have no right to express themselves and be heard on the record on the subject. At best, the court has the option of inquiring with the children, and so if the court does not want to hear from the children, it won’t hear from them. 

[Utah also has provisions for appointing spokespeople for children in the form of guardians ad litem and custody evaluators, but the problem with them is that they are sources of nothing more than court sponsored hearsay, providing accounts allegedly coming from the children, but secondhand, filtered through the biases, agendas, and inattention inherent in every secondhand account. The so-called reasoning of judges who refuse to permit testimony directly from the child’s mouth to the judge’s ear is patently lame. One of the most common and most lame excuses goes something like this: “Allowing the children to testify places them in the middle of their parents’ child custody fight, so for the sake of sparing the children this trauma, I will not hear from the children.” You may have even heard this argument yourself from judges or even from attorneys. The flaw in such an argument arises when it is asserted to justify “hearing” from the children in the form of guardians ad litem and/or custody evaluators. Whenever I point out that questions to children are still going to be the same kinds of questions, regardless of whether they come from a guardian ad litem (who is a lawyer) or from a custody evaluator. It’s not as though the children somehow magically and cheerfully forget the purpose and import of such questions as long as a judge does not pose them.] 

Some judges may worry that children are too young or too manipulable to be trusted to express their experiences and preferences in a way that is probative, in credible a way that will help the court make a sound, informed decision. But such judges can’t know one way or the other if the children are not questioned on the record at all. To assume that all children are inherently bad witnesses is unfair to everyone, but especially to the child. 

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

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Law from a legal assistant’s point of view, week 34: Electing judges

Law from a legal assistant’s point of view, week 34: Electing judiciary officials

By Quinton Lister, legal assistant 

I mentioned in a previous post that if I were to build my own legal system that I would make all judiciary officials publicly elected officials. However, I recognize there are pros and cons to electing judges.  

PROS (as I see them): 

  1. Having elected judges would increase the accountability judiciary officials have to the public. In Utah, we can vote to retain a judge, but we do not vote them into office, as they are appointed by the governor.
  2. Electing judges allows the people to have a greater voice in the justice system. What better way to ensure that the judges represent the people then allowing the people to elect the judges?
  3. A judge who is elected has more incentive to act in accordance with the voice of the people, especially if they face re-election. They cannot “rest on their laurels” so to speak.

CONS (as I see them): 

  1. Elected judiciary officials are more susceptible to the influence of special interests. As is the case with any publicly elected official, big money can and will throw its funds behind the candidate they believe will represent their particular interests, even when those interest are contrary to the public interest. 
  2. Publicly elected judiciary officials have more incentive to “legislate from the bench” to appease their constituents
  3. * Electing judges can result in inexperienced judges, if the same judge can’t get re-elected. Electing judges can result in a revolving door of new judges coming in and out of the judiciary each election cycle.

*This could be a potential pro in the eyes of some. 

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

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Law from a legal assistant’s point of view, week 30: Good Judges

By Quinton Lister, legal assistant 

In the course of my 7 months as a legal assistant to a divorce attorney in Utah, I have already shared some of my thoughts on the role of judges.  

I have come to see how much power judges have and it has given me pause to consider the impact a judge can have on the lives of so many people. It is essential for the courts of Utah (and the rest of the United States of America) to be staffed with good and competent judges. I do not claim to know all of what makes a judge good and competent, but I will elaborate on what I mean by “good” and “competent”. 

What I mean by a “good” judge is a judge that has a good heart. That does not mean a judge who is lax and lenient, unwilling to “make the punishment fit the crime.” Good judges follow the law and construe and apply it fairly and impartially.  

A “competent” judge is knowledgeable of the law and not afraid administer it. Is one who understands the rules of evidence and can be decisive when called upon to be. This is different from what I mean by “good” because competence in this sense means that the judge knows the law, what it means (and what it does not). One who is still learning and willing to learn, even while a judge.  

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

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What if a parent sued their child for all the money they spent raising them?

What would happen if a parent were to sue a child for every single penny they spent on raising such a child and the judge were to rule in the parent’s favor? 

You’d likely have an incompetent and/or biased judge. 

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

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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 | | 801-466-9277

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What are some ways to not appear judgmental as a lay witness?

What are some examples of how to not appear judgmental as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime). 
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed. 
  3. Listen to the questions posed to you, so that you know what information is being elicited from you. 
  4. Simply answer questions, and answer questions simply. 
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.” 
    • Do not, do not, do not try to answer yes/no questions with rambling stories. 
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.” 
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool. 

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

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What is the percentage of people who commit/are prosecuted for perjury?

What percentage of people lie while under oath in a courtroom, and how often does someone get prosecuted for perjury? 

Re: What percentage of people lie under oath in a courtroom: 

  • If anyone knows this, I don’t know who he/she/they is/are.  
  • If such statistics could accurately be obtained, I don’t know how they could be.  
  • As with so many things, what constitutes “a lie” is not as cut and dried as it may seem, even to intellectual people. 
  • If accurate statistics do exist, I’m sure most in the legal system don’t want anyone to know about them because I’d bet that if such statistics exist they are not flattering to the legal system.
    • I’m not sure how much we can blame the courts for “failing” to catch lies, however, given that no one is infallible and nobody is capable of detecting lies more than roughly 50% of the time* 

Re: How often someone who committed perjury is prosecuted for perjury: 

  • very rarely 

*Sender Demeanor: Individual Differences in Sender Believability Have a Powerful Impact on Deception Detection Judgments 

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

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Law from a legal assistant’s point of view, week 21: Never

By Quinton Lister, legal assistant

I am still new at my job. I have only been a legal assistant since Summer of 2021, but I know for myself that I would never go to court representing myself. There is simply too much going on in the legal system to not have expert help.  

Perhaps you think I am biased because my boss is a lawyer, but I have been to enough hearings and a few trials to know that “Pro Se” ain’t the way to go. Pro Se litigants are at a tremendous disadvantage simply because they do not know what they do not know. Many people elect to represent themselves due to financial constraints, while this is completely understandable, I feel for these people. They are at the mercy of a system that kills the weak (for lack of a more flattering term). The legal system seems more often to create victims rather than protect them. True justice is hard work, and if you are not trained, no matter how hard you work the load will likely be too much to bear by yourself. 

Utah Family Law, LC | | 801-466-9277 

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What are the biggest mistakes lawyers make when presenting their case?

What are some of the biggest mistakes lawyers make when presenting their case to a jury?

  1. Being long-winded, repetitive, rambling, imprecise, boring.

But here’s the kicker: if you are clear and concise, then what you think are “in the bag” issues may not be, what you think are minor points may be major points in the court’s opinion. And so if you ignore the “in the bag” or “minor” points, then the court might hold that against you. In other words, it’s impossible to know if you’ve said too much or too little. You’re damned if you do, damned if you don’t. Closing arguments can drive you mad, sometimes.

  1. Believing the court didn’t make up its mind long before closing argument.

But here’s the kicker: if the court really hasn’t made up its mind already (it has been known to happen), then you can’t in good conscience “phone in” your closing argument because i) that’s unprofessional and unethical; and ii) you don’t want to wonder what might have been had you tried your best.

Utah Family Law, LC | | 801-466-9277

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Have cameras in a courtroom ever resulted in one of the attorneys or judge asking for the equivalent of an “instant replay in football”?

Yes, in a manner of speaking.  

There are many examples of court room camera footage being referred to help establish facts that can only be verified based upon the visual record and not the audio record of what occurred in court. I personally viewed videos of courtroom proceedings where an opposing attorney or police officer is accused of stealing a file or a document off of the table in the courtroom. Sometimes the question arises as to whether someone in the courtroom made obscene or threatening gestures.  

And so while these questions may not be answered by an immediate “instant replay” kind of review, video recordings of courtroom proceedings can be and are used to resolve various issues of visual or viewable fact that may arise in a court case or in the court proceedings themselves. 

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

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Does a family court judge know when a parent is being malicious?

Rarely, and when the judge does know, it’s usually because the other parent’s malicious behavior is so way over the top as to be impossible to detect or ignore or plausibly deny. Indeed, many courts in divorce and child custody cases are often adept at “seeing” malicious behavior on the part of an innocent parent or detecting real malicious behavior, but attributing it to the innocent parent instead of correctly identifying the real culprit.

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

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Law from a legal assistant’s point of view, week 4: Trial by fire

By Quinton Lister, Legal Assistant 

I attended my first trial this past week. I did not question any witnesses or argue the case at the trial or anything like that because I am not a lawyer (I’m a legal assistant), and it was fascinating to experience. The trial was a “bench” trial which means that the parties present their case before the judge, but there is no jury. I have learned that divorce and child custody trials in Utah never have juries. One can’t have one’s divorce case tried to a jury even if one wanted a jury trial. Fun fact, according to the attorney I work for (Eric Johnson), the only state that allows juries in divorce cases is Texas.  

One surprising thing about this trial was that it took all day even though there were only two witnesses that were questioned the entire trial, the mom and the dad. Each attorney had a long set of questions that each asked his/her client on the witness stand. The other attorney would then have the opportunity to cross-examine with his/her own set of questions. I did not envy these witnesses. It was an emotionally taxing thing for me just to observe, so I can imagine how much harder it is to be on the hotseat. 

The trial was for a child custody case. It would, in my opinion, be difficult to be a judge in this case because the only witnesses were the two parties in question. There was not much physical evidence (like documents, photos, etc.) and the two parties gave seemingly contradictory testimonies. It would be hard to be a judge in that type of situation because the judge must decide who she believes and who she thinks is lying (whether by telling flat out falsehoods or not telling the whole truth).  

I learned during this trial how important it is to stay focused because it could be easy to lose track of the line of questioning, and each side had to be prepared to counter when something unexpected happened or if there was an objection that needed to be made.  

Speaking of objections, one thing that I did not expect was that the judge could even acknowledge that a question was objectionable yet not be required to sustain the objection when an attorney pointed this out. That is a lot of power for one person to have. In this case, it was clear to me that the judge was set on finishing the trial in one day, and so there were certain objections and claims made that she wouldn’t bother with. Whether this was the right thing to do I am not certain, but that has been perhaps one of the most eye-opening things I witnessed at this trial.  

What did I learn from experiencing a trial for the first time that I can pass on? If you are preparing for a trial make sure you do your homework, understand what the purpose of the trial is and what the court needs to know, and be grateful if you have experienced legal counsel (I can’t imagine how a pro se litigant could expect to do well in trial when it’s a close call kind of case). At least, that is my point of view on the subject.  

Utah Family Law, LC | | 801-466-9277

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Ward v. McGarry – 2021 UT App 51

Ward v. McGarry – 2021 UT App 51 



Court of Appeals of Utah. 

Sara WARD, Appellant, v. Meredith MCGARRY, Appellee. 

No. 20200435-CA 

Filed May 6, 2021 

Third District Court, Salt Lake Department, The Honorable Richard D. McKelvie, No. 134901200 

Attorneys and Law Firms 

Angilee K. Dakic, Attorney for Appellant 

Martin N. Olsen, Midvale, and Beau J. Olsen, Attorneys for Appellee 

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred. 




*1 ¶1 Sara Ward challenges the district court’s final order regarding child support in a paternity action. We reverse and remand for further proceedings. 


¶2 Ward and Meredith McGarry have one child together. The two have been involved in a paternity action regarding that child since 2013. Although they have resolved custody issues relating to the child, they were unable to reach a resolution regarding child support. 


¶3 The parties’ dispute centers on disagreements regarding the amount of McGarry’s monthly income. McGarry is self-employed and has an ownership interest in at least one company. Ward reports having ongoing difficulties obtaining documentation relating to McGarry’s income, asserting that his disclosures were incomplete and heavily redacted. The parties engaged in settlement negotiations and exchanged rule 68 settlement offers, see Utah R. Civ. P. 68, and in his rule 68 settlement offer, McGarry offered to have income of $30,000 per month imputed to him. But the parties were unable to come to an agreement. 


¶4 The parties appeared before a domestic relations commissioner for a hearing on March 11, 2020, to address various non-dispositive motions then pending before the court, including motions for sanctions and a motion to strike. The parties did not anticipate that the substantive issues in the case would be resolved at that time. However, at the hearing, which lasted only a few minutes, the commissioner did not directly address the pending motions; instead, she announced that she was “going to make a recommendation … to wrap this up and resolve” the case and proceeded to impute McGarry’s income “at $30,000 a month going forward for child support purposes” based on McGarry’s “agreement.” Further, the commissioner recommended that McGarry pay $56,000 in child support arrearages and attorney fees, a number calculated by averaging Ward’s request for $60,000 and McGarry’s rule 68 offer of $52,000. The commissioner did not take evidence at the hearing, made no further findings in support of these calculations, and did not distinguish which portion of the lump sum award was attributable to attorney fees as opposed to arrearages. The commissioner’s recommendation took the form of an order captioned “Final Order Re Child Support.” 


¶5 Ward objected to the commissioner’s recommendation, asserting that the commissioner “failed to make requisite findings that would support the order” and erred by relying on McGarry’s rule 68 settlement offer to reach the imputation number rather than calculating that amount based on the evidence. Ward further asserted that the commissioner “made no findings as to how she calculated the child support arrears or attorney fees awarded to” Ward and erred in lumping the arrears and fees together rather than calculating them separately. Ward also claimed that the commissioner’s order, in the absence of an evidentiary hearing, deprived her of her “right to a trial.” The district court countersigned the commissioner’s recommendation, making it the final order of the court, and denied Ward’s objection without holding any further hearing or making any additional findings on the record. Ward now appeals. 


*2 ¶6 Ward asserts that the district court erred in approving the commissioner’s recommendation and summarily denying her objection without adequate findings and without a trial or other evidentiary hearing.1 “The ultimate question of whether the trial court strictly complied with … procedural requirements … is a question of law that is reviewed for correctness.” State v. Holland, 921 P.2d 430, 433 (Utah 1996); accord Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, ¶ 25, 156 P.3d 782. Further, “we review the legal adequacy of findings of fact for correctness as a question of law.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d 478 (quotation simplified). 


¶7 “In all actions tried upon the facts without a jury …, the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of evidence.” Utah R. Civ. P. 52(a)(1). Moreover, when a party objects to a commissioner’s recommendation, the judge must “make independent findings of fact and conclusions of law based on the evidence.” Id. R. 108(f); see also Day v. Barnes, 2018 UT App 143, ¶ 16, 427 P.3d 1272 (“[R]ule [108] is explicit that the district court’s review is independent on both the evidence and the law.”). A court’s findings must “contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882. 


¶8 In this case, the district court did not make any independent findings of fact or conclusions of law, as required by rule 108 of the Utah Rules of Civil Procedure.2 McGarry urges us to construe the court’s signing of the commissioner’s recommendation and summary denial of Ward’s objection as an implicit adoption of the same findings and conclusions entered by the commissioner. However, nothing in the record supports such an assumption.3 


¶9 In any event, the commissioner’s findings are inadequate to support her legal conclusions. The commissioner made a single finding in support of her recommendation: “The parties have had extensive, ongoing litigation for the past seven (7) years and a conclusion of this matter is critical for the parties and the minor child.” This finding does not address any of the evidence pertaining to McGarry’s income, the arrearages owed, or the attorney fees incurred by Ward. Rather than receiving and examining any evidence and reaching legal conclusions based on that evidence, the commissioner imputed income based solely on McGarry’s rule 68 settlement offer, which was never accepted.4 See generally Utah Code Ann. § 78B-12-203(8)(b) (LexisNexis 2018) (outlining the factors a court must consider in calculating the appropriate amount of income to impute to a parent). The commissioner’s recommendation regarding child support arrearages and attorney fees was likewise unsupported by any evidence. Rather than examining the actual numbers and making findings regarding the amount owed, the commissioner simply split the difference between the two parties’ claimed numbers in their rule 68 settlement offers. Such findings would not adequately support the court’s decision even if we could somehow construe them as independent. 


*3 ¶10 The overarching problem in this case—and the ultimate source of the inadequacy and insufficiency of the court’s findings—is that no judicial officer ever took evidence or held a hearing on the contested child support issues. Unless the matter in question can be resolved summarily (for instance, by summary judgment pursuant to rule 56 of the Utah Rules of Civil Procedure), parties have a right to their “day in court,” in which they have the opportunity to testify and present evidence regarding the relevant issues. See Utah Const. art. I, § 11 (“All courts shall be open, and every person, for an injury done to the person in his or her person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, with or without counsel, any civil cause to which the person is a party.”); Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 38, 44 P.3d 663 (“Parties to a suit, subject to all valid claims and defenses, are constitutionally entitled to litigate any justiciable controversy between them, i.e., they are entitled to their day in court.”). 


¶11 At some level, we understand the commissioner’s frustration with parties who had litigated for several years over positions that were perhaps not all that far apart. But concerns regarding judicial efficiency alone cannot justify depriving parties of their day in court. The contested child support issues in this case needed to be resolved, if not through negotiation or summary resolution, then through a trial at which evidence was presented. The commissioner’s and the district court’s actions to short-circuit that process here were improper. 


¶12 Because the district court did not take evidence and make “independent findings of fact and conclusions of law based on the evidence,” see Utah R. Civ. P. 108(f), in resolving Ward’s objection, we must reverse the order and remand for further proceedings. 




1 Ward also raises arguments regarding the inadequacy of McGarry’s disclosures. However, she does not identify any particular errors the court made with respect to discovery issues, and we are therefore unable to review her arguments on this point. In any event, as we are reversing the district court’s child support order, Ward will have the opportunity to raise any ongoing issues with respect to discovery on remand. 


2 We are also concerned about the court’s refusal to grant Ward a hearing when requested. See generally Utah R. Civ. P. 108(d)(3) (“If the hearing before the commissioner was in a domestic relations matter other than a cohabitant abuse protective order, any party has the right, upon request … to a hearing at which the judge may require testimony or proffers of testimony on genuine issues of material fact relevant to issues other than custody.”). 


3 If the commissioner had taken evidence and if the district court, after reviewing that evidence, had expressly adopted the commissioner’s findings as its own, then it might be possible to construe those findings as independent findings mirroring those of the commissioner. But that is not what occurred in this case. 


4 The commissioner relied on McGarry’s rule 68 settlement offer to calculate the $30,000 imputation amount, but Ward never agreed to this amount. “Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge … enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2018). McGarry asserts that we should construe this provision as permitting a court to impute income to a parent based on that parent’s unilateral stipulation to the amount imputed. However, McGarry’s interpretation is inconsistent with the language of the statute and would also lead to an absurd result. 

First, nothing in the statute requires the court to impute income based on the imputed parent’s stipulation. It simply states that the court cannot impute income “unless the parent stipulates” or other conditions are met. Id. And in fact, the statute explicitly states that “in contested cases,” the imputation requires a hearing and factual findings entered by the judge in support of the imputation. Id. Here, Ward maintained that McGarry’s income was greater than $30,000 per month. The appropriate amount of McGarry’s income was therefore contested, requiring the court to calculate the appropriate amount after a hearing if the parties could not reach an agreement. 

Moreover, even if the statute was ambiguous and McGarry’s interpretation was consistent with the plain language of the statute, his reading would lead to an absurd result, as it would essentially require the court to impute income at whatever level the party being imputed requests. See, e.g.Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263 (“When statutory language plausibly presents the court with two alternative readings, we prefer the reading that avoids absurd results.” (quotation simplified)). Interpreting the statute in this way could have a significant negative impact on the right children have to be supported by their parents—a right that we have consistently held “is not subject to being bartered away, extinguished, estopped or in any way defeated by the agreement or conduct of the parents.” Hills v. Hills, 638 P.2d 516, 517 (Utah 1981); accord Andrus v. Andrus, 2007 UT App 291, ¶ 14, 169 P.3d 754. 


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