Tag: jurisdiction

If a Family Court Judge Orders That a School District Provide Certain Documents and the District Does Not Respond at All, Believing That the Court Has No Jurisdiction, Can the Order Be Enforced, or Is Something Else Going on That I Don’t Understand?

If the court does not have jurisdiction to issue an order to the school district or has issued a defective order, then the school district has every right to oppose the order.

If the court has jurisdiction to issue an order to the school district, and the order is valid, then school district is legally obligated to comply with the order and risks being sanctioned by the court if it fails or refuses to comply. However, if neither one of the parties to the lawsuit or the court itself does not take steps to enforce the order, then it doesn’t really matter whether the court has jurisdiction or whether the order is valid.

So, if a legally enforceable order exists, if the school district is not complying with it, and the court is not taking action on its own to enforce the order, then you will need to file a motion with court seeking and order and the action necessary to enforce the order.

Utah Family Law, LC | | 801-466-9277

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If you get a divorce but everything is in your name, do you have to split it?

If you get a divorce but everything is in your name, do you get to keep everything or do you have to split it? 

I will answer your question in the context of the law of the jurisdiction where I practice divorce law (Utah): 

First, a short answer to your question: whether property acquired in the individual name of a spouse during a marriage (other than by gift or inheritance) does not somehow shield that property from being awarded in whole or in part to the other spouse in divorce. 

Second, it will be helpful to understand a few terms that are key to understanding property in divorce (See Black’s Law Dictionary (11th ed. 2019)): 

– marital property. Property that is acquired during marriage and that is subject to distribution or division at the time of marital dissolution. • Generally, it is property acquired after the date of the marriage and before a spouse files for separation or divorce. The phrase marital property is used in equitable-distribution states and is roughly equivalent to community property. — Also termed marital estate; matrimonial property. 

– separate property. 1. Property that a spouse owned before marriage or acquired during marriage by inheritance or by gift from a third party, and in some states property acquired during marriage but after the spouses have entered into a separation agreement and have begun living apart or after one spouse has commenced a divorce action. — Also termed individual property. 

– community property. Assets owned in common by husband and wife as a result of their having been acquired during the marriage by means other than an inheritance by, or a gift or devise to, one spouse, each spouse generally holding a one-half interest in the property. • Only nine states have community-property systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. A community-property regime is elective in Alaska. 

– quasi-community property. Personal property that, having been acquired in a non-community-property state, would have been community property if acquired in a community-property state. • If a community-property state is the forum for a divorce or administration of a decedent’s estate, state law may allow the court to treat quasi-community property as if it were community property when it determines the spouses’ interests. 

– equitable distribution (1893) Family law. The division of marital property by a court in a divorce proceeding, under statutory guidelines that provide for a fair, but not necessarily equal, allocation of the property between the spouses. • With equitable distribution, when a marriage ends in divorce, property acquired during the marriage is divided equitably between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, and the length of the marriage. The court may take into account the relative earning capacity of the spouses and the fault of either spouse. Equitable distribution is applied in 47 states (i.e., all the states except California, Louisiana, and New Mexico, which are “equal division” community-property states). — Also termed equitable division; assignment of property. 

Utah is an equitable distribution state in the context of divorce. Here is how Utah defines the difference between separate and marital property, and what a divorce court is empowered to do with separate and marital property. See Lindsey v. Lindsey, 392 P.3d 968 (Utah Ct.App. 2017), 2017 UT App 38: 

When distributing “marital property in a divorce proceeding, the overriding consideration is that the ultimate division be equitable—that property be fairly divided between the parties.” Granger v. Granger, 2016 UT App 117, ¶ 15, 374 P.3d 1043 (brackets, citation, and internal quotation marks omitted). To that end, a trial court must first “identify the property in dispute and determine whether it is marital or separate.” Dahl v. Dahl, 2015 UT 79, ¶ 121, ––– P.3d –––– (brackets, citation, and internal quotation marks omitted). Marital property ordinarily includes “all property acquired during marriage,” “whenever obtained and from whatever source derived.” Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct. App. 1990) (citation and internal quotation marks omitted). Separate property ordinarily includes premarital property, gifts, and inheritances, including any appreciation that may accrue during the marriage. SeeDahl, 2015 UT 79, ¶ 143, ––– P.3d ––––; Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). 

¶ 32 The presumption is that marital property will be divided equally while separate property will not be divided at all. See Dahl, 2015 UT 79, ¶ 121, ––– P.3d ––––; Dunn v. Dunn, 802 P.2d at 1323. Married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce. SeeMortensen, 760 P.2d at 308. Thus, equity generally requires that “each party retain the separate property he or she brought into the marriage, including any appreciation” thereof. Dunn, 802 P.2d at 1320, 1323; accordDahl, 2015 UT 79, ¶ 143, ––– P.3d ––––; Mortensen, 760 P.2d at 308. 

¶ 33 But separate property “is not totally beyond a court’s reach.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (brackets, citation, and internal quotation marks omitted). Before carving property out of the marital estate, a trial court must consider whether circumstances warrant an equitable override of the separate-property retention rule. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. Three circumstances have been identified under Utah law as supporting an award of separate property at the time of divorce. These exceptions are when separate property has been commingled; when the other spouse has augmented, maintained, or protected the separate property; and in extraordinary situations when equity so demands. SeeMortensen, 760 P.2d at 308; Dunn, 802 P.2d at 1320. 

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

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What will the court do if I do not sign a letter sent by my ex-husband?

What will the court do if I do not pick up a letter my ex-husband sent that needs to be signed by me from the courts about his back court ordered alimony of $20,000.00 that he is in default already and has been ordered by the courts several times? 

This is a question you need to ask of a local divorce attorney in your jurisdiction. 

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


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Is it possible to get court transcripts for custody hearings?

Every jurisdiction is different regarding which court hearings are open to the public and whether recordings of their proceedings are available to the public or even to the parties’ themselves. 

Every jurisdiction is different regarding how court proceedings are recorded too. 

Not every jurisdiction makes a written transcript of court proceedings. 

Most jurisdictions make audio or video recordings of court proceedings at a certain level, and divorce and family law proceedings are on that level. 

In the jurisdiction where I practice divorce and family law (Utah), the court makes its own audio recordings of divorce another family law court proceedings. These proceedings are open to the court, and thus the audio records of the court proceedings are public record, meaning that they are available to the public. Utah courts do not, at the trial court level, make written transcriptions of court proceedings. 

If you wanted to obtain a transcript of Utah family law court proceedings, you would need to take the audio recording of those proceedings and have them transcribed. If you wanted to use the transcription for appeals purposes, you would have to have the record transcribed by a stenographer approved by the court. It might also be possible to make your own transcript and to utilize that, if the opposing party agreed that your transcript was a true and complete and accurate transcription of the proceedings. 

Generally speaking, if all you want is a written transcription of the recordings of court proceedings for your own personal use, there’s nothing to stop you from doing so. And with advances in transcription technology, the cost of transcription have plummeted from what they were just 10 or 20 years ago. There are online transcription services such as or – Voice Meeting Notes & Real-time Transcription that don’t do a perfect job of transcription, but do a very good job of transcribing for very little money. These types of services make obtaining transcriptions of court proceedings easier and less expensive than ever before. 

Transcripts can be very useful in establishing certain facts that may have otherwise escaped the court’s attention had they not been recorded and transcribed. Judges hate listening to audio recordings, but are much more receptive to reading a transcript of the very same recording because it’s much easier to isolate those portions of the recording in the transcript that are relevant to the issues before the court.  

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

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Can you go back to your ex-spouse after a divorce?

Yes, there is no law (I know of in any jurisdiction of which I am aware, but check in your jurisdiction to be sure) against a divorced couple resuming a romantic relationship or from remarrying. 

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

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Is staying with parents during pregnancy grounds for filing for divorce?

You don’t have to come up with creative reasons for getting a divorce anymore in the age of no-fault divorce (in the U.S.A.). 

You don’t have to find a reason to blame your spouse for seeking a divorce from your spouse. No-fault divorce literally means “no fault” need be shown as grounds for divorce. 

With these facts in mind, you almost don’t need to come up with an excuse a “good reason” to obtain a divorce anymore. I say “almost” because while it is true that you do not have to ascribe fault to your spouse as grounds for divorce, you usually have to give a legally recognized reason for the divorce, and in the jurisdiction where I practice divorce law (Utah), the no-fault basis that I’ve yet to have a court question or reject is “irreconcilable differences of the marriage”. Technically, a court could challenge one’s claims of irreconcilable differences and, if it determines that there are not, in fact, irreconcilable differences between the spouses, the court could deny the request for a decree of divorce and dismissed the divorce action, but I’ve never seen that happen in the 25 years I’ve been practicing law to date, and I doubt I ever will.  

Many would question the wisdom of no-fault divorce laws and their unintended consequences, but that doesn’t change the fact that no-fault divorce exists and exists in every state in the United States of America. 

So if you want a divorce, but you don’t have the typical fault-based grounds available to you, it doesn’t matter anymore. 

Now, to answer your specific question: if you sought a divorce purely on the grounds that your spouse lived with her parents during pregnancy, that would probably fail as grounds for divorce. However, if you were to allege that her separation from you for the duration of her pregnancy has caused irreconcilable differences, and you could prove that the marriage is irretrievably broken as a result, you’d win. You’d get a divorce. You might look like a heel for divorcing on those grounds, especially if your wife had good reason to need to spend most or all of her pregnancy in the presence and care of her parents (such as a high-risk pregnancy where she would need someone constantly with her in the event of an emergency or a sudden need to visit the hospital or doctor), but if you just couldn’t stand the fact that your wife stays with her parents during pregnancy and that cause you to give up on the marriage, the court would probably give you a divorce on the grounds of irreconcilable differences. 

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

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Do both parties have to sign the paperwork for a divorce to be granted?

Do both parties have to sign divorce paperwork in order for a divorce to be granted?

It is possible in many jurisdictions (Utah being one of them; if you are not residing in Utah, you’ll need to consult the laws and court rules of the particular jurisdiction where you are contemplating filing for divorce to be sure) to obtain a divorce from your spouse without your spouse being required to sign anything. 

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


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How do I pursue child visitation when I don’t know where the child is?

I’m preparing to begin pursuing child visitation. However, the child’s mother has moved and never told me where, and has cut off contact with me. How can I find out where she is now, or would getting a lawyer to find her address be better? 

Make sure that you conduct the search in a way that is legal and that does not constitute harassment or stalking. 

If a Google (and other search engines) search hasn’t uncovered the mother’s address, 

then I would move on to one or two of the online services that charge a fee to locate such information. Here’s a list of some: 

If that doesn’t work, hire a good private investigator. Note: private investigator quality varies widely. Make sure you don’t waste your money on a lousy P.I. 

You asked if hiring a lawyer is a good way to find your child’s mother’s address and other contact information. No. Lawyers generally have no such skills. When lawyers want to find this kind of information they . . . hire private investigators. But it would be wise to consult an attorney when you start this process of seeking a court order for visitation to ensure that you don’t violate any laws in searching for the mother and in seeking a court order of visitation. 

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

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Can there be a prenup that will protect the salary you earn during the marriage?

In the context of alimony, no ( at least not in the jurisdiction where I practice divorce and family law, which is Utah).

A prenuptial agreement provision that purports to bar a spouse from qualifying to receive alimony in the event of a divorce is not void (it can be enforced), but such a provision is not binding upon a divorce court judge.

Although the validity of the agreement is not dispositive in this case, it should be noted that in general, prenuptial agreements concerning the disposition of property owned by the parties at the time of their marriage are valid so long as there is no fraud, coercion, or material nondisclosure. However, provisions eliminating the payment of child support or alimony in prenuptial agreements are not binding on the court. This judicial discretion allows the parties freedom of contract while preserving the right of the state to insure adequate support for its citizens.

Huck v. Huck, 734 P.2d 417 (Supreme Court of Utah 1986)

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

Martin v. Kristensen 2021 UT 17

Martin v. Kristensen – 2021 UT 17







No. 20190797

Heard March 10, 2021

Filed May 27, 2021

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Todd M. Shaughnessy

No. 084902378

Attorneys: Karthik Nadesan, Salt Lake City, for appellant R. Stephen Marshall,

Kevin M. Paulsen, Salt Lake City, for appellees

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in



Having recused himself, JUSTICE HIMONAS does not participate herein; JUDGE ANGELA FONNESBECK sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Yvonne Martin filed for divorce from Petter Kristensen in 2008. The divorce court awarded Yvonne temporary possession of the marital home during the pendency of the divorce proceedings. But the home was owned by Petter’s father, Frank Kristensen. Frank served Yvonne with a notice to vacate shortly after Yvonne filed for divorce. When Yvonne refused to vacate, Frank filed an unlawful detainer action against Yvonne. Yvonne claimed that the temporary possession order precluded Frank from seeking the remedies available in an unlawful detainer action. The district court disagreed, found Yvonne in unlawful detainer, and entered a judgment that included a substantial award.

¶2 The court of appeals affirmed. It held that the temporary possession orders entered in the

divorce action did not foreclose the unlawful detainer remedies available to Frank by statute. We affirm. We hold that the possession orders in the divorce proceeding functioned like a temporary possession order in an unlawful detainer proceeding—they precluded the tenant’s eviction from the property but did not affect the availability of statutory remedies for unlawful detainer.


¶3 Yvonne Martin and Petter Kristensen married in Summit County, Utah in 1995. Starting in 1999, they lived together at a home on Quicksilver Drive in Salt Lake City. Yvonne owned the home and Petter retained an interest in any proceeds from its eventual sale.

¶4 Yvonne transferred ownership of the Quicksilver Drive home to Petter’s father, Frank Kristensen, in 2004. The couple continued living in the home, however, under a tenancy at will— neither Yvonne nor Petter paid any rent or otherwise compensated Frank.

¶5 Petter left the home in May 2008, when Yvonne received a protective order against him after she alleged that Petter had abused her. Yvonne filed for divorce soon thereafter. She then sought and received another protective order in the divorce proceeding—an order granting her the use, control, and possession of the martial home.

¶6 Frank then sought to evict Yvonne in a notice to vacate served on July 1, 2008. Yvonne did not vacate during the five-day period provided in the notice to vacate. Instead, on July 3, 2008, Yvonne filed an amended petition in the divorce proceeding. The amended petition named Frank as a defendant and asserted, among other things, that Yvonne had transferred the home to Frank under duress and that she rightfully owned the home. The next month, on August 1, 2008, Frank filed an unlawful detainer action against Yvonne.

¶7 In the divorce proceeding, Yvonne sought an order granting her possession of the home until the court divided the marital property. After months of motions and argument, the divorce court entered an order awarding Yvonne use and possession of the home pending final resolution of the divorce proceeding.

¶8 Frank remained an absent party during the pendency of the above-noted motions in the divorce proceedings. He never responded despite being named as a party in Yvonne’s amended complaint. Eventually he defaulted. After the default, Frank appeared and convinced the divorce court to set aside the default. On the same day, before arguments on Yvonne’s temporary possession motion, a commissioner recommended dismissing Frank from the divorce action.

¶9 The recommendation was never implemented—no order was ever entered formally dismissing Frank from the divorce action. But the parties seemingly proceeded as if he had been dismissed. Frank’s counsel did not appear that day in the arguments on the motion for temporary possession. And Frank was not listed as a party to the divorce action in subsequent filings and orders.

¶10 Not long after this hearing, Yvonne filed a separate action against Frank seeking to quiet title in the home. Yvonne again claimed that she had transferred the property to Frank under duress.

¶11 Yvonne next sought and received an order that prevented Petter from evicting her during the pendency of the divorce proceedings. Frank was incapacitated in Norway at this time, with Petter acting on Frank’s behalf through a power of attorney. Yvonne sought to prevent Petter from using the power of attorney to evict her.

¶12 The divorce court granted Yvonne’s motion in June 2012. It entered a preliminary injunction preventing Petter from evicting Yvonne. And, perhaps contemplating that Frank might evict

Yvonne when he regained capacity, the district court required Petter to “make arrangements for comparable housing for” Yvonne if she were evicted. The elements of the June 2012 order were reinforced in a subsequent order entered in September 2012. That order again enjoined Petter from interfering with Yvonne’s possession and declared that Petter would be responsible for providing comparable housing if Yvonne were evicted.

¶13 Two years later, after Yvonne had requested several delays, a trial was held in the unlawful detainer and quiet title actions—which by then had been consolidated. At trial, a jury rejected Yvonne’s assertion that she had transferred the property to Frank under duress. On that basis, the district court concluded that Frank was the rightful owner of the property and that Yvonne was guilty of unlawful detainer starting on July 6, 2008— five days after Frank filed the notice to vacate. See UTAH CODE § 78B-6-802(1)(b)(ii) (2008) (providing that “in cases of tenancies at will,” tenants are guilty of unlawful detainer while they “remain[] in possession of the premises after the expiration of a notice of not less than five calendar days”).

¶14 The original four proceedings—for fraudulent transfer, unlawful detainer, quiet title, and divorce—were then consolidated. After consolidation, the district court initially ordered a new trial in the unlawful detainer and quiet title actions. In so doing, the court declared that “no one may interfere with Yvonne Martin’s right to stay in the . . . home during the pendency of the suit.”

¶15 That order was set aside, however, after the case was transferred to a new judge. Upon transfer, the district court vacated the order for a new trial and ordered a new trial only on the damages in the unlawful detainer action. The district court affirmed the prior determination on the unlawful detainer issue. It held that Yvonne was in unlawful detainer and Frank was entitled to possession of the property.

¶16 Shortly thereafter, on October 12, 2015, Yvonne vacated the home. Several months later, the court convened a new trial on damages in the unlawful detainer action. In that proceeding, the district court found that Yvonne was in unlawful detainer from July 6, 2008 (five days after the notice of unlawful detainer) to October 12, 2015 (when she vacated the property). Based on evidence of fair market rental value for the property, it also concluded that Frank’s damages were in the amount of $224,534.10—an amount that in the court’s view was required to be trebled under Utah Code section 78B-6-811(3).

¶17 The district court acknowledged the sizable nature of the treble damages award at stake. But it also noted that the unlawful detainer statute includes a “significant safety valve that is designed to protect against excessive damages for unlawful detainer”—in section 78B-6-810, which “allows a person to request a hearing or trial within 60 days and/or otherwise provides for expedited proceedings.” In the district court’s view, “[t]hat should have happened here but it did not.” Instead, there were “machinations” that resulted in an “unreasonable delay in the resolution of th[e] case” that took “a relatively manageable amount of damages to an enormous amount of damages.” And because “the statute requires” an award of treble damages, the court held that “the total amount awarded to Frank Kristensen [was] $673,602.30, plus attorney fees in an amount to be determined.” The fee amount and other costs were calculated in a subsequent proceeding, and set at $227,060.96. The resulting final judgment was for $900,663.26 in Frank’s favor.

¶18 Yvonne challenged that judgment on appeal, asserting that Frank had no right to seek remedies for unlawful detainer where her possession was lawful under orders awarding her temporary

possession in the divorce action. The court of appeals affirmed. See Martin v. Kristensen, 2019 UT App 127, 450 P.3d 66. It held that the temporary possession orders did not render Yvonne’s detainer lawful because (1) the divorce court’s orders were not entered until after Yvonne “had unlawfully remained on the Property for nearly ten months,” id. ¶ 37; (2) the temporary orders did not “definitively adjudicate” Frank’s rights, and thus authorized Yvonne’s lawful possession at most vis-à-vis Petter, id. ¶ 38; and (3) statutory remedies for unlawful detainer are available notwithstanding an order of temporary occupancy, id. ¶ 40.

¶19 Yvonne filed a petition for certiorari, which we granted. “In reviewing the court of appeals’ decision we apply the same standard of review that it would apply in reviewing the decision of the district court.” Est. of Faucheaux v. City of Provo, 2019 UT 41, ¶ 9, 449 P.3d 112. The case primarily raises questions of law—as to the effect of temporary possession orders on the availability of remedies for unlawful detainer. And we decide those questions de novo, affording no deference to the lower courts’ analysis. See Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 41, 308 P.3d 382.


¶20 Yvonne does not defend the lawfulness of her possession of the Quicksilver Drive home during the ten-month period that preceded the entry of the first order authorizing temporary possession entered in the divorce action. She thus effectively concedes the first-stated basis for the court of appeals’ decision— that she “unlawfully remained” on the property for a period of almost ten months. Martin v. Kristensen, 2019 UT App 127, ¶ 37, 450 P.3d 66. And she accordingly appears to acknowledge her liability to Frank for remedies for unlawful detainer during that period.

¶21 Yvonne does challenge the other two grounds for the court of appeals’ decision, however. She claims that Frank was a party to the divorce action, participated in it, and was bound by orders entered in that case. Alternatively, she contends that the court in the divorce action had every bit as much authority over the parties as the court in the unlawful detainer action. And with that in mind, she asks us to conclude that her possession was lawful (as authorized by the divorce court) and thus cannot be a basis for remedies for unlawful detainer.

¶22 We disagree with this last point and affirm the court of appeals on the third basis for its decision without reaching the second. Yvonne has a point that the divorce court’s jurisdiction was no less than that of the unlawful detainer court. At the same time, however, neither court’s power was any greater than the other’s. And the remedies available to Frank in unlawful detainer were governed by the terms and conditions of the unlawful detainer provisions of the Utah Code.

¶23 The unlawful detainer provisions of the code make clear that a temporary possession order does not deprive a landlord of the right to the remedies available upon an eventual determination of unlawful detainer on final judgment. Such an order may make the tenant’s possession lawful during the pendency of the unlawful detainer proceeding. But the full panoply of statutory remedies remains available to the landlord upon entry of final judgment.

¶24 A tenant in Yvonne’s position is admittedly in a precarious position. If the unlawful detainer action is not resolved expeditiously, the tenant may ultimately be on the hook for an outsized award of treble damages, as occurred here. But the statutory framework provides mechanisms for avoidance of that problem—through provisions for expedited resolution of the action. See UTAH CODE § 78B-6-810(1). Yvonne did not avail herself of those provisions. Instead she took several

steps that had the effect of dragging out the process. The large award at issue was partially a result of those steps—and is not a problem that this court can erase under the clear provisions of the governing statute.

¶25 We affirm on these grounds. We describe the basis for our decision in greater detail below. First, we outline the governing provisions of the Utah Code. Second, we explain the basis for our decision that Frank remained entitled to the statutory remedies for unlawful detainer despite the entry of temporary possession orders in the divorce action. And third, we address additional objections raised in Yvonne’s briefing.


¶26 The unlawful detainer provisions of the Utah Code establish a framework “for quickly and clearly resolving conflicts over lawful possession of property between landowners and tenants.” Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 22, 232 P.3d 999. They do so by defining the terms and conditions of a tenant’s unlawful detainer, prescribing procedural mechanisms for disposition of unlawful detainer actions, and providing remedies available upon a determination of unlawful detainer.

¶27 “A tenant holding real property for a term less than life” may be “guilty of an unlawful detainer” in a number of ways set forth by statute. UTAH CODE § 78B-6-802(1) (2008). Some of the listed grounds are implicated by remaining “in possession” of property beyond a specified date. See, e.g., id. § 78B-6-802(1)(a)–(c) (2008). Others concern the misuse of property, as by engaging in tortious or otherwise unlawful activity on the premises. See id. § 78B-6-802(1)(d)–(f) (2008).

¶28 The statute contemplates an initial “notice” by the landlord of these or other alleged grounds for unlawful detainer, see id. § 78B-6-805 (2008), followed by a complaint initiating an “action” for unlawful detainer, see id. §§ 78B-6-806, -807 (2008). It also sets forth a timeline and procedures for a response by the tenant. For some alleged grounds, the code provides that the tenant may “save the lease from forfeiture” by performing “the condition or covenant” in question “[w]ithin three calendar days after the service of the notice.” Id. § 78B-6-802(2) (2008). For others, the code acknowledges the possibility that “the covenants and conditions of the lease violated by the lessee cannot afterwards be performed,” or that “the violation cannot be brought into compliance.” Id.

¶29 The code expressly contemplates that a tenant may be granted a right of temporary possession of the property during the pendency of the action. See id. § 78B-6-808 (2008) (providing for the execution of a possession bond by a landlord and a tenant’s right to “remain in possession if he executes and files a counter bond”); id. § 78B-6-810(2)(b)(i) (2008) (providing for a determination of “who has the right of occupancy during the litigation’s pendency” in an action for nonpayment of rent). But it also prescribes remedies available to a landlord upon an eventual determination of unlawful detainer. See id. § 78B-6-811 (2008). And the statutory scheme makes clear that the landlord’s remedies are not suspended or affected by an order authorizing a tenant’s temporary possession.

¶30 If the court finds that the tenant was in unlawful detainer upon entry of final judgment, “judgment shall be entered against the defendant for the rent, for three times the amount of the damages assessed [by the court] . . . and for reasonable attorney fees.” Id. § 78B-6-811(3) (2008). The award of such remedies is mandatory. And their availability is unaffected by the entry of a

prior order authorizing the tenant’s temporary possession of the property. This is clear from the structure of the statute—the fact that such orders are in effect “during the litigation’s pendency,” id. § 78B-6-810(2)(b)(i) (2008), and contemplate “further proceedings” on issues that “remain to be adjudicated between the parties” at trial, id. § 78B-6-808(6) (2008).

¶31 The statutory proceedings are to be expedited on terms and conditions set forth in the code. In actions “in which the tenant remains in possession of the property,” the court is to “expedite” the disposition of all motions and “shall begin the trial within 60 days after the day on which the complaint is served, unless the parties agree otherwise.” Id. § 78B-6-810(1) (2008). “In an action for unlawful detainer where the claim is for nonpayment of rent,” the court is also required to “hold an evidentiary hearing, upon request of either party, within ten days after the day on which the defendant files the defendant’s answer” to “determine who has the right of occupancy during the litigation’s pendency.” Id. § 78B-6-810(2) (2008). The above-noted possession bond proceeding is also subject to expedited time constraints. If the landlord files a possession bond, the tenant is entitled to demand a hearing “within three days of being served with notice of the filing of plaintiff’s possession bond” and has a right to “a hearing within three days of the defendant’s demand.” Id. § 78B-6-808(4)(c) (2008).


¶32 Yvonne has a point that her possession of the Quicksilver Drive home was “lawful” in the sense that her occupancy had been authorized in orders entered by the divorce court. But that alone does not tell us that Frank was thereby foreclosed from the statutory remedies available upon a final judgment in the unlawful detainer action. The divorce court’s jurisdiction was no less than that of the unlawful detainer court. But it was likewise no greater. And the effect of a temporary occupancy order on the remedies for unlawful detainer is prescribed by the statutory provisions that govern such proceedings.

¶33 Those provisions make clear that an order of temporary occupancy has a limited effect. It gives the tenant a temporary right of occupancy “during the litigation’s pendency.” See id. § 78B-6-810(2)(b) (2008). But such a right of occupancy is tentative and conditional. A temporary order contemplates “further proceedings” that “remain to be adjudicated between the parties” at trial, id. § 78B-6-808(6) (2008), including proceedings on the merits of the landlord’s allegation of unlawful detainer.

¶34 The alleged unlawful detainer at issue here arose under a tenancy at will—a lease for an indefinite term without specification as to duration or rent. By statute, unlawful detainer for such a tenancy is established if the tenant “remains in possession” of property “after the expiration of a notice of not less than five calendar days.” Id. § 78B-6-802(1)(b)(ii) (2008). Frank alleged that Yvonne was in unlawful detainer under this provision from July 6, 2008 (five days after the notice of unlawful detainer) to October 12, 2015 (when Yvonne eventually vacated the premises). The district court agreed. In the consolidated trial on the quiet title and unlawful detainer actions, a jury rejected Yvonne’s assertion that she had executed a quitclaim deed on the property under duress, and the district court concluded that Yvonne had thus been in unlawful detainer since July 2008.

¶35 The court of appeals affirmed that decision and we likewise affirm. The temporary occupancy orders entered in the divorce action had no greater effect than a temporary occupancy order entered in an unlawful detainer proceeding. And the terms of the unlawful detainer provisions of the code

make clear that a temporary occupancy order does not foreclose the availability of statutory remedies for unlawful detainer upon entry of final judgment.

¶36 The temporary possession orders made Yvonne’s possession lawful in the sense of protecting her from eviction. But that is no different from a temporary possession order entered in an unlawful detainer action. And such a temporary order does not preclude an unlawful detainer action—or foreclose the remedies available upon final judgment in such action. Such orders simply preserve the status quo pending disposition of the unlawful detainer proceeding. Unless and until a final judgment is entered in such proceeding, the tenant remains on the hook for the remedies available to the landlord if the landlord succeeds in securing a final judgment in its favor.

¶37 Yvonne assumed a risk when she remained in possession of the property during the pendency of the quiet title and unlawful detainer proceedings. If she had prevailed in persuading a jury that her quitclaim deed had been entered under duress, presumably she would have established that she was not in “unlawful detainer” as a tenant who “remain[ed] in possession” of a landlord’s property. See id. But she failed to succeed on that claim. And her gamble turned out to be a bad one. As a result of the extensive time it took to resolve the quiet title and unlawful detainer issues, Yvonne ended up owing over $900,000 in damages—an amount that included fair market rental value as damages (trebled under the statute) as well as costs and attorney fees.

¶38 Such an award may seem unduly large at this juncture. But the amount was the inevitable result of delay under a statutory scheme that calls for treble damages. Much of the delay was Yvonne’s own doing; at very least, she did not choose to expedite the proceedings. And the ultimate disposition of Yvonne’s duress claim left the district court with no options.

¶39 Once title was quieted in Frank’s name, the writing was on the wall for the unlawful detainer proceeding. Frank’s lawful title was conclusively established. And that meant that Yvonne had “remain[ed] in possession” of the premises of Frank’s home under a tenancy at will “after the expiration of” Frank’s five-day notice in July 2008. See id. Yvonne could have vacated the home within five days. She could have sought expedited proceedings on the unlawful detainer proceedings, as provided by statute. But she did neither. And the result was a very large award that included treble damages and attorney fees.

¶40 That award may seem lamentable. But it cannot be avoided on the ground that Yvonne’s possession of the Quicksilver Drive home was lawful under temporary possession orders.


¶41 Yvonne advances two sets of challenges to the above framework for disposition. First, she identifies circumstances that purportedly would foreclose “continuing damages for unlawful detainer,” which she cites as grounds for concluding that Frank’s damages should likewise be foreclosed. Second, she advances legal and equitable grounds for precluding the accumulation of treble damages in a case like this one. We reject both sets of arguments for reasons explained below.


¶42 Yvonne contends that “[t]here are any number of events that should terminate continuing damages for unlawful detainer.”

And she asks us to analogize this case to the hypothetical circumstances she identifies. We accept the premises of Yvonne’s argument. But we find the cited circumstances distinguishable from the

case at hand.

¶43 Yvonne first posits a circumstance in which a tenant at will under a notice of unlawful detainer “enter[s] into a lease agreement with the property owner that allowed him to stay in the property.” The new lease, in her view, could “transform” the tenant’s “possession to a lawful one” that terminates liability for unlawful detainer. And “if the term of the new lease started retroactively,” Yvonne asserts that “unlawful detainer liability should be eliminated completely.”

¶44 Yvonne also imagines a case in which the landlord “withdraw[s]” the notice of unlawful detainer and “authorizes the tenant to remain in possession.” She asserts that such “action would restore the tenant to lawful possession and should render the tenant’s initial unlawful detainer liability void ab initio.”

¶45 Yvonne seeks to analogize her case to these hypothetical circumstances. In this case and in the cited hypotheticals, Yvonne claims that the tenant has “gained lawful possession.” And in all of these circumstances, she asserts that it is “both unjust and nonsensical” to allow the tenant to “continue to accrue” wrongful detainer damages “so long as he remained in possession.”

¶46 We assume for the sake of argument that unlawful detainer damages would not accrue in the cited hypotheticals. But the hypotheticals are easily distinguished. And the distinctions highlight a core defect in Yvonne’s position.

¶47 In the event of a new, retroactive lease, it can no longer be said that the tenant “remain[ed] in possession” of the landlord’s property “after” expiration of the five-day notice. See id. The new lease reestablishes the tenancy. And its retroactive application means that there never was an unlawful detainer. That is not the case here. The temporary possession orders did not reestablish the tenancy at will. They did not establish (retroactively or otherwise) that Yvonne was never in unlawful detainer after expiration of the five-day notice. They simply put a temporary hold on eviction, subject to the availability of unlawful detainer remedies upon entry of final judgment in favor of the landlord.

¶48 The landlord’s withdrawal of the notice of unlawful detainer is similarly distinguishable. An unlawful detainer plaintiff is certainly entitled to waive the right to assert damages for unlawful detainer. Such a waiver is enforceable, and forecloses the right to seek statutory remedies. That did not happen here. And Yvonne’s hypotheticals thus provide no basis for a decision in her favor.


¶49 Yvonne next challenges the accrual of treble damages against her. She contends that the governing statutes do not clearly provide for “treble damages during a period of court-authorized possession.” And she advances “public policy and equity” grounds for foreclosing the accumulation of treble damages in a case in which the operative possession orders did not provide “notice” of Yvonne’s “continued liability for treble damages.”

¶50 We find no basis for these arguments in the operative terms of the code. By statute, the factfinder is required to “assess the damages resulting to the plaintiff from . . . unlawful detainer.” Id. § 78B-6-811(2) (2008). In an action under a tenancy at will, the plaintiff’s damages are primarily measured by the fair market rental value of the property. See, e.g., Valley Lane Corp. v. Bowen, 592 P.2d 589, 592 (Utah 1979). Once such damages are calculated, “[t]he judgment shall be entered against the defendant” for “three times the amount of the damages” assessed by the court and for a “reasonable attorney fee[].” UTAH CODE § 78B-6-811(3) (2008). The entry of

judgment is mandatory upon a determination of unlawful detainer. And the judgment must include an award of treble damages. The statute leaves no room for a court-made exception.

¶51 These remedies provisions themselves may not speak directly to the effect of a temporary possession order. But temporary orders do not affect the eventual availability of any statutory remedies—for reasons set forth in Parts II.A. & B. above. And we reject Yvonne’s position on that basis.

¶52 Perhaps it would have been ideal for the temporary possession orders to specify their limited effect—to make clear that Yvonne could remain on the hook for the statutory remedies for unlawful detainer. But hindsight is 20/20 and judges aren’t always in a position to anticipate the ideal terms of an entered order. Yvonne was responsible for assessing the effect of the orders of temporary possession under our law. And we are in no position to deprive Frank of the remedies available to him by statute.

¶53 We reject Yvonne’s invocation of “public policy and equity” on that same basis. Treble damages, in a sense, may seem a “severe remedy.” Osguthorpe, 2010 UT 29, ¶ 23 (quoting Sovereen v. Meadows, 595 P.2d 852, 853 (Utah 1979)) (characterizing them as such, while noting that they are necessary to hasten a quick resolution of unlawful detainer actions). But they are the remedy provided by statute. And our court has no equitable power to override that remedy on public policy grounds.


¶54 A landlord who establishes unlawful detainer is entitled to the remedies prescribed by statute, including treble damages. Such remedies are not foreclosed by an order authorizing temporary possession, whether entered in the unlawful detention action itself or in a related proceeding.

¶55 This holding may appear to have produced an outsized judgment in this case. But the size of the judgment here was the product of the delay in the proceedings, which was initiated at least in part by the tenant. And we have no authority to override the statutorily prescribed remedies in any event.

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

Martin v. Kristensen – 2021 UT 17

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What is a complete list of reasons someone can file child support that cannot be fought?

What is a complete list of reasons someone can file child support that cannot be fought?

There is no such list; however, here is my list of pretty dang safe bets that you’ll be paying child support if one or more of these factors are met:

You are the biological or adoptive parent of the child for whom child support is sought and:

You meet all the statutory/regulatory criteria for your jurisdiction to obligate a parent to pay child support.

You have substantially more money than you need on a monthly basis, i.e., a surplus of money that you can obvious spare for the payment of child support.

Or you are found to be able to earn or otherwise obtain more money than you need on a monthly basis, i.e., a surplus of money that you can obvious spare for the payment of child support.

Or you earn (or are deemed able to earn) enough money such that, even if you have to reduce your standard of living slightly or even somewhat significantly to pay child support, you can still live relatively well on less than you currently spend and pay the difference in child support.

About the only sure way to avoid being ordered to pay child support is to prove to the satisfaction of the court that you are unable to earn enough money to support both yourself and the child financially. Even if the other parent has more than enough money to support the child financially and does not even need your money, most jurisdictions will order you to pay child support, if the other parent wants such an order. The child support may be minimal (say, $30 or even less), but you’ll likely be ordered to pay child support, if you aren’t the child’s sole physical custodian.

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

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What policies and factors determine how child support is calculated?

What policies and factors determine how child support is calculated?

This is a good question and a question that many parents ask.

Every state in U.S. has child support calculation guidelines and formulae to determine which parent pays child support and how much child support that parent will pay. Each state’s child support calculation guidelines utilizes or is based upon one of three different models:

  • Income Shares Model
  • Percentage of Income Model
  • The Melson Formula

Under the Income Shares Model, each parent is responsible for a portion of the amount of financial support a child needs to maintain the lifestyle the child would have had the parents were not separated. The Income Shares Model relies upon knowing each parent’s to calculate the support award. The parent with the lower income of the two parents will receive a monthly child support payment from the other parent. This amount is known as the base child support award.

The Percentage of Obligor Income Model utilizes the obligor parent’s income only in calculating child support. Many (though not all) Percentage of Obligor Income guidelines assume that the support payee parent’s child-rearing costs are the same dollar amount or percentage of income as the obligor parent’s child-rearing costs. The Income Shares Model considers the incomes of both parents. The Percentage of Obligor Income Model does not factor in the custodial parent’s income in calculating the support award amount.

The Melson Formula[1] is different from the other two models. Rather than calculating child support based upon parental incomes, it first considers the basic needs of the child and each parent before determining whether and how much child support the obligor parent can and will pay.

This July 10, 2020 article from the National Conference of State Legislatures [click the link to access the article] provides a list of links to the child support calculation guidelines for every state and Washington D.C. in the U.S., as well as the Guan and Virgin Islands territories

Note: legislation, regulations, and caselaw governing child support policy and calculation change, so be sure you know both A) what your jurisdiction’s current child support guidelines are and B) how to use apply them correctly and accurately when calculating child support.

Income Shares Model

• Alabama • Arizona • Arkansas • California • Colorado • Connecticut • Florida • Georgia • Idaho • Illinois • Indiana • Iowa • Kansas • Kentucky • Louisiana • Maine • Maryland •  Massachusetts • Michigan • Minnesota • Missouri • Nebraska • New Hampshire • New Jersey • New Mexico • New York • North Carolina • Ohio • Oklahoma • Oregon • Pennsylvania • Rhode Island • South Carolina • South Dakota • Tennessee • Utah • Vermont • Virginia • Washington • West Virginia • Wyoming (also • Guam • Virgin Islands)

Percentage of Income Model (this model has two variations: the Flat Percentage Model and the Varying Percentage Model)

Percentage of Income Model

• Alaska • Mississippi • Nevada • North Dakota • Texas • Wisconsin

Flat Percentage Model

Alaska • Mississippi • Nevada • Wisconsin

Varying Percentage Model

• North Dakota • Texas

Melson Formula

• Delaware • Hawaii • Montana

According to the July 10, 2020 NCSL article the District of Columbia uses a hybrid model that starts as a varying percentage of income model and is then reduced by a formula based on the custodial parent’s income.

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

[1] Named from the Delaware Family Court judge who articulated the formula in Dalton v. Clanton, 559 A.2d 1197 (Del. 1989).

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If I can’t find an attorney, can it honestly be said I got a fair trial?

If I can’t find an attorney, can it honestly be said I got a fair trial?

If a person seeks legal representation in a court, and every attorney they tries to hire refuses to represent them, can he receive a “fair trial”?

That depends upon how you define a “fair trial”. Some people mistakenly believe that in the United States every litigant is guaranteed representation by an attorney in any lawsuit. This is not true. Defendants in criminal cases that involve the risk of substantial jail time are entitled to appointment of counsel, free of charge to the defendant, if the defendant so desires.

In some jurisdictions, a parent is entitled to appointed counsel if the state petitions to terminate that parents parental rights.

There is no right to appointed counsel in civil cases. so there is no right to appointed counsel in divorce actions or personal injury actions or other cases that do not involve serious, jailable criminal charges. So, if you were to claim you could not find any lawyer to represent me and to help me in my civil suit, you could not claim that your rights were somehow violated. It could thus be said that you received a fair trial, even if you were unable to find a lawyer to represent you at trial.

But if the case was a complex one, and one where a knowledge of the laws and/or regulations, as well as the procedural rules of court, makes the difference between winning or losing, having no attorney to represent you, that isn’t a fair fight. unfair, but not illegal. You have no legal recourse in those circumstances.

I have met people who have claimed that they cannot find an attorney to represent them in a particular civil action. More often than not, the reasons why are fairly clear: the person seeking representation can’t afford to pay the attorney and/or the person does not have a winning legal argument (either because that person is clearly in the wrong or because that person doesn’t have enough evidence to win or to win in the manner that person desires).

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

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2018 UT App 224 – In re Adoption of B.N.A. – wrong district court

2018 UT App 224 – In re Adoption of B.N.A.


C.E.L., Appellant,
T.L. AND A.L., Appellees.

Opinion No. 20180316-CA
Filed December 6, 2018

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 172300016

Karra J. Porter and Crystal Lynn Orgill, Attorneys for Appellant

Ronald D. Wilkinson, Marianne P. Card, and Sara Pfrommer, Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Utah adoption law provides that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis Supp. 2018). In this case, we must determine what the consequences are, under this statute, if prospective adoptive parents file an adoption petition in the wrong district. The biological father (Father) of the child in question (Child) contends that the statute speaks to a court’s subject-matter jurisdiction, and asserts that a petition filed in the wrong district must be dismissed for lack of jurisdiction. The prospective adoptive parents (Petitioners), on the other hand, contend that the statute speaks simply to venue, and assert that when a petition is filed in the wrong district, the court has jurisdiction to continue to adjudicate the case, but must transfer the case upon request to the proper district. For the reasons set forth herein, we find Petitioners’ position persuasive, and therefore affirm the district court’s decision to deny Father’s motion to dismiss.


¶2        In early 2014, Father engaged in a brief romantic relationship with a woman (Mother) who became pregnant and gave birth to Child in November 2014. After the relationship ended, Father asserts that he had no further communication or interaction with Mother, and therefore claims to have been unaware of Mother’s pregnancy or of Child’s existence until after Child was born, and unaware that he was Child’s father until December 2017. It is undisputed that Father has never had any relationship with Child, who is now four years old.

¶3        In the meantime, in the spring of 2017 Mother decided to place Child for adoption, and began working with an adoption agency toward that end. The adoption agency selected Petitioners as a potential adoptive family, and Petitioners filed a petition for adoption in April 2017. Despite the fact that Petitioners reside in Utah County, part of Utah’s Fourth Judicial District, they filed their petition in Tooele County, part of Utah’s Third Judicial District.

¶4        Immediately after filing their petition, Petitioners asked the court to authorize a “commissioner” to take Mother’s relinquishment, in accordance with Utah Code section 78B-6-124(1)(b). The court approved Petitioner’s request, and signed an order appointing a representative of the adoption agency to take Mother’s relinquishment. After the order was signed, Mother met with the representative and signed a document relinquishing her parental rights to Child. One of that document’s provisions stated that Mother’s relinquishment was irrevocable “as to [Petitioners],” but that Mother was “not . . . consenting to the adoption of [Child] by any other person or persons.” In addition, the document provided that, “[i]f [Petitioners] are unable to complete the adoption of [Child] for any reason, and the adoption petition is dismissed or denied, it is in [Child’s] best interest that he be returned to [Mother’s] custody and control.”[1] Soon after Mother signed the relinquishment, Petitioners filed a copy of it with the court, and a few days later the court signed an order awarding temporary custody of Child to Petitioners.

¶5        Just a few months later, before the adoption was finalized, Mother filed a motion to set aside her relinquishment, asserting that she did not sign the document freely and voluntarily. The district court, after a half-day evidentiary hearing, determined that Mother had acted voluntarily and was not under duress or undue influence, and denied Mother’s motion. The court’s decision to deny Mother’s motion is not at issue in this appeal.

¶6        About a month later, in early January 2018, Father entered an appearance in the adoption case and filed a motion seeking leave to intervene, asking that the adoption proceedings be dismissed. A few weeks later, Father filed a second motion, raising for the first time his argument—advanced here in this appeal—that the district court did not have subject-matter jurisdiction over the case because Petitioners filed their petition in the wrong district.

¶7        After full briefing and oral argument, the district court denied Father’s motion to dismiss, and determined that it did have subject-matter jurisdiction over the case. Father then asked for permission to appeal the district court’s interlocutory order regarding jurisdiction, and we granted that request.


¶8        The issue presented in this case is one of statutory interpretation: whether Utah Code section 78B-6-105(1)(a) acts as a limit on a district court’s subject-matter jurisdiction, or is merely a venue statute. “We review questions of statutory interpretation for correctness, affording no deference to the district court’s legal conclusions.” State v. Stewart, 2018 UT 24, ¶ 5 (quotation simplified).


¶9        The statute in question states, in fairly straightforward language, that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court,” and that, if the prospective adoptive parent is a Utah resident, the petition is to be filed “in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a). All parties agree that this language demands that adoption proceedings be initiated by the filing of a petition. And all parties agree that, at least in adoption cases that are to be filed in district court rather than juvenile court, see id. § 78B-6-105(1)(c), and in which the prospective adoptive parent is a Utah resident, see id. § 78B-6-105(1)(a), this petition is supposed to be filed in the district where the prospective adoptive parent resides. On these points, the language appears plain and unambiguous.

¶10 The statute is not as plain, however, when it comes to setting forth the consequences that attach when a petitioner files an adoption petition in the wrong judicial district.[2] Father asserts that a petition filed in the wrong district must be dismissed, because he reads the statute as speaking to a court’s subject-matter jurisdiction to adjudicate the case. Petitioners, on the other hand, point out that any Utah district court has subject-matter jurisdiction over adoption cases as a class, and read the statute as a venue provision that does not implicate a court’s jurisdiction, but merely allows any party to request that the petition be transferred to the proper district. To resolve this dispute, we start by examining the concept of subject-matter jurisdiction, and then return to a further examination of the text of the statute.

¶11 “The notion of ‘jurisdiction’ is a slippery one.” In re adoption of B.B., 2017 UT 59, ¶ 125, 417 P.3d 1. The word “jurisdiction” means “different things in different circumstances.” Id. Sometimes, it is used to refer to “the scope of a court’s power to issue a certain form of relief,” while at other times the word is used to refer to “the territorial authority of the court that issues a decision,” but “neither of these notions of jurisdiction goes to a court’s subject-matter jurisdiction.” Id. ¶¶ 125–27.

¶12 Subject-matter jurisdiction is a “special” type of jurisdictional concept, one that is “distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte” and, unlike other notions of jurisdiction, we “do not allow the parties to waive or forfeit [subject-matter jurisdiction] from consideration.” Id. ¶ 128. This distinction is “crucial,” because “[i]f an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table,” and that can “undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system.” Id.

¶13 Because subject-matter jurisdiction is “special” and “distinct” from other jurisdictional concepts, see id., due to the fact that “parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category of subject matter jurisdiction,” Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100; see also In re adoption of B.B., 2017 UT 59, ¶ 129 (stating that “our law has been careful to cabin the notion of subject-matter jurisdiction”). In recent years, our supreme court has made a concerted effort to do just that, “routinely rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction,” and instructing trial courts that they must “guard[] against the faux elevation of a court’s failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 130 n.14 (quotation simplified); see also Johnson, 2010 UT 28, ¶ 9 (stating that “[t]he concept of subject matter jurisdiction does not embrace all cases where the court’s competence is at issue,” and that “[w]here the court has jurisdiction over the class of case involved, judgment is not void on the ground that the right involved in the suit did not embrace the relief granted”); Chen v. Stewart, 2004 UT 82, ¶ 36, 100 P.3d 1177 (determining that the parties mischaracterized their claim as one grounded in subject-matter jurisdiction in a futile attempt to avoid waiver), abrogated on other grounds by State v. Nielsen, 2014 UT 10, 326 P.3d 645. In Johnson, for instance, the court held that a district court had subject-matter jurisdiction over a divorce case, even though the parties were never actually legally married to begin with, because subject-matter jurisdiction is generally determined by reference to a “class of cases, rather than the specifics of an individual case.” Johnson, 2010 UT 28, ¶ 10. “Because the district court clearly has the authority to adjudicate divorces, looking to the specific facts of a particular case is inconsistent with our usual definition of subject matter jurisdiction.” Id. ¶ 12.

¶14 In fact, our supreme court has limited the concept of subject-matter jurisdiction to two specific situations: “(a) statutory limits on the authority of the court to adjudicate a class of cases,” and “(b) timing and other limits on the justiciability of the proceeding before the court (such as standing, ripeness, and mootness).” In re adoption of B.B., 2017 UT 59, ¶ 121 (quotation simplified); see also id. ¶ 153 (stating that “[o]ur law has long assessed subject-matter jurisdiction at the categorical level—encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability”). Neither of these situations is present here.

¶15 Starting with the second category first, Father does not assert that any of the common “justiciability” doctrines apply here, and therefore we need not analyze the potential applicability of any of those doctrines to the facts of this case.

¶16 And with regard to the first category, the text of the statute in question contains no express “limits” on the authority of Utah district courts to adjudicate adoption cases generally, as a class. Even Father wisely concedes that “[d]istrict courts may generally handle adoptions.” Indeed, “in Utah our district courts are courts of general jurisdiction” that have “general power to hear ‘all matters civil and criminal’ so long as they are ‘not excepted in the Utah Constitution and not prohibited by law.’” Id. ¶ 143 (quoting Utah Code section 78A-5-102(1)). More specifically, as concerns adoption cases, our supreme court has noted that “Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 34, 266 P.3d 702; see also In re adoption of B.B., 2017 UT 59, ¶ 137 (stating that, “[b]y statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions”).

¶17 When the legislature intends to place a statutory limit on a district court’s jurisdictional ability to hear a category of cases, it certainly knows how to do so expressly. See In re adoption of B.B., 2017 UT 59, ¶ 143 (stating that “[t]he code . . . places certain restrictions on the jurisdiction of our district courts,” but that such restrictions “are expressly denominated as such—as jurisdictional limits”). For instance, the legislature will identify certain claims as within the “exclusive jurisdiction” of an administrative agency or of a particular type of court, see, e.g., Utah Code Ann. § 34A-2-407(12)(a)–(b) (LexisNexis Supp. 2018) (identifying claims within the “exclusive jurisdiction” of the Labor Commission); id. § 78A-6-103(2) (Supp. 2018) (identifying the “exclusive jurisdiction” of juvenile courts over certain matters), or will note that “no court has jurisdiction” to entertain certain actions, see, e.g., id. § 31A-27a-105(1)(b) (2017) (stating that “[n]o court has jurisdiction to entertain, hear, or determine a delinquency proceeding commenced by any person other than the commissioner of this state”). The subsection of the statute at issue here has no such express limitation on jurisdiction. See id. § 78B-6-105(1)(a).[3] It does not identify adoption cases as within the “exclusive jurisdiction” of the judicial district in which the prospective adoptive parent resides, nor does it state that “no court” but the courts in the district in which the adoptive parents reside has jurisdiction over a case.[4]

¶18 Indeed, while the linguistic structure of the statutory subsection in question is not at all similar to other statutes containing express jurisdictional limits, it is quite similar to other statutes concerning venue. Several of Utah’s venue statutes require that a particular cause of action “be brought and tried” or “commenced and tried” in a particular location. See, e.g., id. § 78B-3-305(1) (stating that “[a]ll transitory causes of action arising outside the state, except those mentioned in Section 78B-3-306, shall . . . be brought and tried in the county where any defendant resides”); id. § 78B-3-306 (stating that “[a]ll transitory causes of action arising outside the state in favor of residents of this state shall be brought and tried in the county where the plaintiff resides, or in the county where the principal defendant resides”). We find it difficult to ignore the similarities between these venue statutes and the statute in question, which states that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . where the prospective adoptive parent resides.” See id. § 78B-6-105(1)(a).

¶19      Moreover, in 2004 the legislature amended the title of the statute. Before the amendment, the statute had been captioned “Jurisdiction of district and juvenile court – Time for filing.” See id. § 78-30-7 (LexisNexis 2003).[5] In the 2004 legislative session, without materially altering the relevant language of the statute itself, the legislature changed the title of the statute to read as it does now: “District court venue – Jurisdiction of juvenile court – Jurisdiction over nonresidents – Time for filing.” See Adoption Amendments, ch. 122, § 11, 2004 Utah Laws 546, 553;[6] see also Utah Code Ann. § 78B-6-105. “The title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent. However, it is persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). In this case, in which we must determine whether the statute is a jurisdictional statute or a venue statute, we find it significant that the legislature has specifically categorized the statute as one speaking to venue rather than to subject-matter jurisdiction.

¶20 Despite all of these persuasive indications that the relevant statute speaks only to venue and not to subject-matter jurisdiction, Father directs us to two of our previous decisions that have referred to the statute as “jurisdictional.” See In re adoption of S.L.F., 2001 UT App 183, 27 P.3d 583; In re adoption of K.O., 748 P.2d 588 (Utah Ct. App. 1988). Father asserts that those cases constitute binding authority that the statute is jurisdictional and compel the dismissal of Petitioner’s petition.

¶21 Father’s argument certainly has some force. In those cases, we did refer to the statute as containing a “jurisdiction requirement,” see In re adoption of K.O., 748 P.2d at 591; see also In re adoption of S.L.F., 2001 UT App 183, ¶ 17, and even went so far as to state that “[w]ithout knowing the [petitioners’] residence . . . , this Court cannot ascertain whether or not the trial court had jurisdiction to grant the adoption,” In re adoption of K.O., 748 P.2d at 591. In one of the cases, we implicitly rejected the argument Petitioners advance here, namely, that the adoption statute was merely a “venue” statute, and held that “until the adoption petition was properly filed in Second District Court, where [the prospective adoptive parent] resides, the proceeding had not been ‘commenced’ as required” by the statute. In re adoption of S.L.F., 2001 UT App 183, ¶ 16 n.1.[7] And in the other, we specifically stated that, if the trial court on remand “determines that it had no jurisdiction to hear the adoption because the [petitioners] were not residents of Cache County, Utah at the time of filing, that proceeding was void.” In re adoption of K.O., 748 P.2d at 592.

¶22 It is undeniably the case that one panel of this court is bound to follow the previous decisions of another panel of this court, unless we make a specific decision to overrule or disavow the earlier precedent. See State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that “[u]nder the doctrine of horizontal stare decisis, the first decision by a court on a particular question of law governs later decisions by the same court,” and specifically holding that “[t]he doctrine of horizontal stare decisis applies as between different panels of the court of appeals” (quotation simplified)). However, the principle of horizontal stare decisis only applies if the previous precedent remains robust. See United States v. Plouffe, 445 F.3d 1126, 1128 (9th Cir. 2006) (stating that “where an intervening higher authority has issued an opinion that is clearly irreconcilable with our prior circuit precedent, a panel is free to act disregarding that precedent” (quotation simplified)); see also 21 C.J.S. Courts § 190 (2018) (stating that “stare decisis does not preclude a decision that reflects developments in the law since the courts must consider statutory or case law changes that undermine or contradict the viability of prior precedent”).

¶23 While the two cases upon which Father relies have not been explicitly overruled, two developments have taken place in the decades since those cases were decided that cause us to doubt the continuing vitality of those cases’ discussions of jurisdiction. First, both of those cases were decided prior to 2004, when our legislature amended the title of the statute to specify that the statute, at least as concerns district courts, is intended to speak to venue and not to jurisdiction. Second, since those cases were decided, our supreme court has significantly “cabin[ed] the issues that fall under the category of subject matter jurisdiction,” Johnson, 2010 UT 28, ¶ 10, and has made clear that subject-matter jurisdiction applies to only two situations, neither of which is present in this case. Our fealty is first and foremost to the mandates of our supreme court and to the enactments of our legislature, and where our precedent conflicts with more recent supreme court pronouncements or statutory changes, we are duty-bound to follow the path our supreme court and our legislature have set. See Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.” (quotation simplified)); Beltran v. Allen, 926 P.2d 892, 898 (Utah Ct. App. 1996) (stating that “it is the Utah statute, as interpreted by majority holdings of the Utah Supreme Court, which controls the outcome of this case”).[8]

¶24 For these reasons, we conclude that Utah Code section 78B-6-105(1)(a) speaks to venue, and does not limit a court’s subject-matter jurisdiction. Accordingly, unless the adoption is one that must be filed in juvenile court pursuant to Utah Code section 78A-6-103(1)(o), see Utah Code Ann. § 78B-6-105(1)(c), any district court has subject-matter jurisdiction to adjudicate an adoption case, even one filed in the wrong district, but must transfer the case to the correct district upon the filing of a proper request. Cf. id. § 78B-3-308 (stating that, when a case is filed in the wrong venue, a party may file “a written motion requesting the trial be moved to the proper county”).


¶25 The provision in Utah’s adoption code that requires that an adoption case be “commenced” by the filing of a petition in a particular judicial district is a provision that speaks to venue, and not to subject-matter jurisdiction. Petitioners did indeed file their petition in the wrong venue, but this did not deprive the court of subject-matter jurisdiction, because any district court in Utah has subject-matter jurisdiction over any adoption case that does not have to be filed in juvenile court. The consequence for filing in the wrong district is not automatic dismissal; it is that any party, upon proper motion, may request that the case be transferred to the correct district. Unless and until such a request is made, however, the court in which the case is filed may continue to adjudicate the case, and its rulings are not void. For all of these reasons, we affirm the district court’s decision to deny Father’s motion to dismiss for lack of subject-matter jurisdiction, and we remand the case to the district court for further proceedings consistent with this opinion.

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


[1] 1. This provision of the relinquishment explains why the parties are litigating about whether Utah Code section 78B-6-105(1)(a) speaks to subject-matter jurisdiction or to venue: if the statute is jurisdictional, Petitioners’ petition should be dismissed, and in that event Father intends to assert that Child should be returned to Mother’s custody and control.

[2] Father emphasizes the statute’s use of the word “shall,” which is usually interpreted as a mandatory command, see Utah Code Ann. § 68-3-12(1)(j) (LexisNexis 2016) (defining “shall” as meaning “that an action is required or mandatory”), and argues that adoption petitioners are commanded to file their adoption petition in the proper district. This argument is correct, as far as it goes, but the legislature’s use of the word “shall,” in this context, fails to answer the question at the center of this dispute because it tells us nothing about what the intended consequences are for filing the petition in the wrong place. Indeed, this case nicely illustrates one reason why some legal scholars have noted that the word “shall” is “a semantic mess”: because “a recurrent issue in the huge constellation of shall-must holdings” concerns “the effect of failing to honor a mandatory provision’s terms,” which presents “an issue for a treatise on remedies, not interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 113, 115 (2012).

[3] Father points out that subsection (1)(c) of the statute appears to be jurisdictional, in that it places some adoption cases within the exclusive jurisdiction of the juvenile court, and infers therefrom that the other subsections must therefore also be jurisdictional. Father is arguably correct that subsection (1)(c) speaks to a juvenile court’s subject-matter jurisdiction—that provision states that adoption proceedings “shall be commenced by filing a petition” in “juvenile court as provided in Subsection 78A-6-103(1).” See Utah Code Ann. § 78B-6-105(1)(c) (LexisNexis Supp. 2018). The referenced section of the Juvenile Court Act states that “the juvenile court has exclusive original jurisdiction” over “adoptions” in cases where “the juvenile court has previously entered an order terminating the rights of a parent and finds that adoption is in the best interest of the child.” See id. § 78A-6-103(1)(o) (Supp. 2018). This language does appear to encompass express limits on the authority of courts other than juvenile courts to hear a particular sub-class of adoption cases. However, it does not follow that, just because subsection (c) is jurisdictional, subsections (a) and (b) must also be jurisdictional. On this issue, the title of the statute provides helpful guidance, instructing us that the statute concerns itself with “[d]istrict court venue” but with “[j]urisdiction of juvenile court.” See id. § 78B-6-105; see also infra ¶ 19. As we read the statute, the legislature has placed most adoption cases within the broad subject-matter jurisdiction of district courts, but has placed one sub-class of adoption cases within the narrower subject-matter jurisdiction of juvenile courts. Within the first (broader) category, we do not perceive the legislature as having set any jurisdictional limits on the ability of any particular judicial district or individual district court to hear any of the cases that fall within their purview.

[4] Furthermore, unlike some other comparable state statutes, see, e.g., Wyo. Stat. Ann. § 1-22-109 (2018) (requiring specific documents to be filed with an adoption petition), Utah’s statute does not impose any requirements on petitioners to file specific documents (such as, for instance, relinquishments or consents) with adoption petitions. Father points to some of these other state statutes, and notes that courts in other states have found such requirements to be jurisdictional. See, e.g., In re JWT, 2005 WY 4, ¶¶ 5–6, 104 P.3d 93. Father’s argument is unavailing here, however, because Utah’s statute imposes no such requirements, and therefore we need not consider whether our legislature intended any such requirements to be jurisdictional.

[5] In 2008, Utah Code section 78-30-7 was renumbered as Utah Code section 78B-6-105. See Title 78 Recodification and Revision, ch. 3, § 864, 2008 Utah Laws 48, 443.

[6] The “redline” version of the bill that effected the title change did not show the new title in “redline” format, even though all proposed changes to the body of the statute were clearly marked. Father infers from this that the legislators themselves (as opposed, presumably, to legislative staff) may not have known that the title was even being changed, and therefore asserts that “the title change does not imply any legislative intent.” We find Father’s argument speculative—we simply do not know why the change to the title of the bill was not redlined, or whether that fact has any significance. Legislative history certainly has a role to play in helping courts interpret ambiguous statutes, see, e.g., Allred v. Saunders, 2014 UT 43, ¶ 18, 342 P.3d 204 (stating that “it is sometimes appropriate to consider legislative history when interpreting statutes”), but in order to shed any meaningful light on the question of statutory meaning, the legislative history in question must itself be “reliable,” see Graves v. North E. Services, Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (stating that “[w]e may resolve ambiguities in the text of the law by reference to reliable indications of legislative understanding or intent” (emphasis added)). It is certainly mysterious that the title change was not redlined even though the rest of the proposed (…continued)

changes were. But without knowing more about the reasons why that happened, or about what (if any) significance that had to the legislators who considered the bill, we find Father’s argument insufficiently persuasive to overcome the basic fact that, prior to 2004, the title proclaimed the statute to be jurisdictional, but that since 2004, the legislature has chosen a title that proclaims the statute to be a venue statute, at least as concerns district courts.

[7] Even in In re adoption of S.L.F., there is some indication that— prior to our supreme court’s more recent cases—this court and the district courts were conceptualizing subject-matter jurisdiction too broadly. In that case, a potential adoptive parent filed an adoption petition in Salt Lake County (in the Third Judicial District), even though she lived in Davis County (in the Second Judicial District). See In re adoption of S.L.F., 2001 UT App 183, ¶ 3, 27 P.3d 583. Later, the parent made a “motion for a change of venue,” asking that the petition be transferred to Davis County. Id. ¶ 5. The Salt Lake County district court granted the motion, and transferred the petition to Davis County. Id. Had there been a jurisdictional defect of the kind Father envisions, transfer would not have been possible— indeed, the only action a court without jurisdiction can take is to dismiss the case. See, e.g., Hollenbach v. Salt Lake City Civil Service Comm’n, 2013 UT App 62, ¶ 3, 299 P.3d 1148 (per curiam) (stating that “when a court lacks jurisdiction, it retains only the authority to dismiss the action” (quotation simplified)). No party took issue with the Salt Lake County district court’s decision to transfer (rather than dismiss) the case, and we did not reach the propriety of that transfer on appeal.

[8] Father also argues that construing the relevant statute as a venue statute rather than as a jurisdictional statute would have “constitutional implications,” because he points out that fathers are required to “strictly” comply with other provisions of Utah’s adoption code, and argues that “it would be unconstitutional to impose a ‘strict compliance’ standard for biological fathers but a more relaxed standard for adoptive parents.” Our conclusion herein regarding the meaning of the relevant statute—and, specifically, regarding the intended consequences of filing a petition in the wrong district—has nothing to do with requiring “strict” or “relaxed” compliance with the statutory mandates. Our conclusion is simply that the legislature intended the statute to function as a venue statute, and therefore a court does not lack subject-matter jurisdiction over an adoption petition filed in the wrong district any more than it would lack subject-matter jurisdiction over a divorce case or a tort case filed in the wrong county. We see no constitutional infirmities with the legislature’s creation of a venue statute in this context, and therefore reject Father’s constitutional arguments.

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In re A.J.B., 2018 UT App 5, January 5, 2018

In re A.J.B., 2018 UT App 5, January 5, 2018

2017 UT App 237






STATE OF UTAH, Appellee.


No. 20160954-CA

Filed December 29, 2017

Eighth District Juvenile Court, Duchesne Department

The Honorable Keith E. Eddington No. 1100877

Herbert Wm. Gillespie, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

HARRIS, Judge:

¶1        C.C. (Mother) appeals the juvenile court’s order terminating her parental rights to A.J.B. (Child), and asks us to consider two arguments. First, Mother argues that the juvenile court did not have jurisdiction to adjudicate the case, and asserts instead that the case should have proceeded in the Ute Tribal Juvenile Court (the tribal court). Second, Mother argues that, at a minimum, the juvenile court should have contacted the tribal court to discuss jurisdictional issues prior to commencing its termination hearing [1].  Because we conclude that the juvenile court properly exercised its jurisdiction and did not abuse its discretion in declining to contact the tribal court, we affirm.

[1] Notably, Mother does not appeal the merits of the juvenile court’s order terminating her parental rights.


¶2        In June 2014, the State of Utah, Division of Child and Family Services (DCFS), filed a Verified Petition for Protective Services (the Petition), alleging that Mother had abused and neglected Child and seeking protective supervision of Child. In the Petition, DCFS alleged that Child resided in Duchesne County, Utah and that (prior to their respective incarcerations) both Mother and Child’s father (Father) resided in Neola, Utah, a community in Duchesne County [2].  The Petition also stated that “neither parent is a member of a federally recognized Indian tribe,” and that Child was therefore “not an ‘Indian Child’” as defined by the Indian Child Welfare Act (ICWA). See 25 U.S.C. §§ 1901 to 1963 (2012).

[2] Father relinquished his parental rights to Child, and his involvement in the case is not at issue in this appeal.

¶3        The Petition further alleged that, in May 2014, Mother, Father, and Child had been living in Neola at Father’s parents’ residence when police responded to a “call for assistance” and found “drug paraphernalia, including drug pipes, old tin foil with drug residue, including white powder, [and] a prescription pill bottle [] containing whole pills and crushed up powder pills.” The Petition sought, among other things, an order from the court determining that the court had “original exclusive jurisdiction of the child and subject matter of [the] petition pursuant to Utah Code § 78A-6-103.”

¶4        In her response to the Petition, Mother denied that she or Child resided in Neola, and asserted instead that she and Child resided with her parents in Roosevelt, Utah. She further asserted that she was at her parents’ residence in Roosevelt when police found the drug paraphernalia at Father’s parents’ residence in Neola. Mother also generally denied the allegations of the


¶5        Early in the case, in June 2014, the parties agreed to mediate the dispute, an effort that was at least partially successful. After mediation, the parties were able to “agree[] on the facts” of the Petition, as amended, and agreed to “adjudicate” the Petition. Just a few days after the mediation was completed, DCFS filed an Amended Petition, and therein stated that the juvenile court had “original exclusive jurisdiction of the child” and that, at the time of the Petition, Child resided in Duchesne County. The Amended Petition also restated the allegations from the original Petition that “neither parent is a member of a federally recognized Indian tribe,” and that Child was therefore “not an ‘Indian Child’” as defined by ICWA. At a subsequent hearing, the juvenile court found that Mother requested that the facts recited in the Amended Petition “be deemed true” under rule 34(e) of the Utah Rules of Juvenile Procedure, which allows a respondent to admit or deny allegations of abuse and neglect at a pretrial hearing, and that Mother’s request was voluntary.

¶6        On August 12, 2014, the court reduced the parties’ agreement to a court order. Specifically, the court entered findings of fact and conclusions of law, finding that Child resided in Duchesne County and concluding that (1) although Mother is a member of the Timpanogos Tribe, that particular tribe is not a federally recognized tribe and therefore Child is “not an Indian Child” under ICWA, and that “the provisions of ICWA do not apply in this case” [3];  and (2) the court had jurisdiction. Mother did not take issue with these findings or conclusions. The court also ordered, pursuant to the mediated agreement of the parties, that Child reside with Mother’s parents, who at the time apparently still resided in Roosevelt.

[3] ICWA applies only “where the court knows or has reason to know that an Indian child is involved.” See 25 U.S.C. § 1912(a) (2012).

¶7        At some point in the latter part of 2014, Mother’s parents moved to Whiterocks, Utah, a community that is inside the exterior boundaries of the Uintah and Ouray Reservation of the Ute Indian Tribe [4].  Over a year later, however, in March 2016, the court ruled that Mother’s parents were in violation of prior court orders, and ordered a change of custody as a consequence. At that point, the juvenile court ordered that Father’s parents would be given sole temporary custody of Child, and that they could relocate with Child to Oklahoma. After the juvenile court transferred custody of Child to Father’s parents, DCFS moved to terminate Mother’s parental rights to Child.

[4] The record does not tell us exactly when Mother’s parents moved to Whiterocks. However, at the outset of the case, Mother asserted that, prior to her May 2014 incarceration, she was residing with her parents in Roosevelt. She further asserted that Father lived with his parents in Neola. Thus, when DCFS filed the Petition, neither Mother’s parents nor Father’s parents lived in Whiterocks. The first time that Mother’s parents’ Whiterocks address appears in the record is in December 2014.

¶8        Shortly after the court placed Child with Father’s parents, other parties appeared in the case. In May 2016, Child’s maternal aunt and uncle (Aunt and Uncle), who are members of the Ute Indian Tribe, filed a Petition for Custody of Child with the tribal court. Aunt and Uncle also filed a Notice of Lack of Jurisdiction with the juvenile court, asserting that the juvenile court did not have jurisdiction to make custody orders with regard to Child, and seeking an order transferring the case to the tribal court. DCFS moved to strike Aunt and Uncle’s filings with the juvenile court, a motion the juvenile court later granted.

¶9        On July 12, 2016, Ute Family Services (UFS) filed a motion in the juvenile court, asking it to transfer jurisdiction of the case to the tribal court because, according to UFS, Child “was removed from the . . . [Uintah and Ouray] reservation or its exterior boundaries.” That same day, the tribal court purported to “accept jurisdiction” over Child. At a hearing the next day, the juvenile court struck UFS’s motion to transfer, concluding that “this is not an ICWA case.”

¶10      In September 2016, the juvenile court held a hearing on DCFS’s motion to terminate Mother’s parental rights. At the hearing, the court “identif[ied] for the record” that it had conferenced with the parties the day prior via telephone. Mother’s counsel noted that, during the telephone conference, “the court overruled [Mother’s] request . . . that the court postpone[] the trial to have a rule 100[5] type conference with” the tribal court judge to discuss which court—the juvenile court or the tribal court—would exercise jurisdiction over the case.

[5] Rule 100 of the Utah Rules of Civil Procedure is titled “Coordination of Cases Pending in District Court and Juvenile Court.” That rule, discussed more fully below, provides in part that a judge assigned to a child custody case “shall communicate and consult with any other judge . . . assigned to any other pending case involving the same issues and the same parties or their children.” Utah R. Civ. P. 100(b).

¶11      After the hearing, the juvenile court terminated Mother’s parental rights, concluding, among other things, that “it is in the child’s best interests that [Mother’s] parental rights [be] terminated as to [Child] so that [Child] may be adopted.”


¶12      On appeal, Mother first argues that the juvenile court’s August 2014 order resulted in a “placement” of Child onto the Uintah and Ouray Reservation, and therefore the juvenile court’s order “invoked the jurisdiction of the [Ute] tribe under its laws.” Mother argues therefrom that the tribal court—and not the juvenile court—should have been the court to exercise jurisdiction over Child [6]. We review jurisdictional issues for correctness. Nevares v. Adoptive Couple, 2016 UT 39, ¶ 10, 384 P.3d 213 (noting that whether a district court has subject matter jurisdiction is a question of law reviewed for correctness).

[6] As we described above, Mother did not ever raise any specific objection to the juvenile court’s exercise of jurisdiction in this case. Two other parties (Aunt/Uncle and UFS) did raise such objections, but those parties did not ask to intervene in the juvenile court proceedings and are not parties to this appeal. Despite some concerns with whether Mother properly preserved a jurisdictional objection in the juvenile court, we proceed to consider the merits of Mother’s argument here, chiefly because neither DCFS nor the Guardian ad Litem made any argument in their briefs that Mother had not properly preserved the issue. See JP Morgan Chase Bank, NA v. Wright, 2015 UT App 301, ¶ 8 n.6, 365 P.3d 708 (proceeding to the merits of an argument, despite harboring some concerns about preservation, “because [appellee] has not challenged the argument as unpreserved”).

¶13      Second, Mother argues that the juvenile court should have contacted the tribal court “to discuss the tribe’s assertion of jurisdiction” in compliance with rule 100 of the Utah Rules of Civil Procedure. We review a court’s interpretation of a rule of civil procedure for correctness. Bennett v. Bigelow, 2016 UT 54, ¶ 17, 387 P.3d 1016. And because we conclude that the juvenile court’s decision not to contact the tribal court is governed by Utah’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which states that “[a] court of this state may communicate with a court in another state,” see Utah Code Ann. § 78B-13-110(1) (LexisNexis 2012) (emphasis added), we review the juvenile court’s ultimate decision not to contact the tribal court for abuse of discretion, see Zaragoza v. State, 2017 UT App 215, ¶¶ 17–19 (observing that the legislature’s use of the word “may” means that “a district court enjoys wide latitude” in making a decision authorized by statute, and that such decisions are reviewed for abuse of discretion).



¶14      The jurisdictional question in this case is answered by the UCCJEA. See Utah Code Ann. §§ 78B-13-101 to -318 (LexisNexis 2012). That statute was created and enacted to facilitate cases where courts in multiple jurisdictions could potentially exercise simultaneous and concurrent jurisdiction over child custody cases. See Nevares, 2016 UT 39, ¶ 11 (stating that “[t]he model act exists to avoid jurisdictional competition and conflict with courts of other States in matters of child custody” (citation and internal quotation marks omitted))[7].

[7] The Ute Indian Tribe has apparently not adopted any version of the UCCJEA. Nevertheless, the UCCJEA applies here, and provides the framework that the Utah Legislature has instructed Utah courts to use in inter-jurisdictional custody situations. Cf. Utah Code Ann. § 78B-13-104(2) (LexisNexis 2012) (stating that “[a] court of this state shall treat a tribe as a state” for purposesof the UCCJEA); id. § 78B-13-105(1) (stating that “[a] court of this state shall treat a foreign country as a state” for purposes of the UCCJEA). The UCCJEA contains no provision instructing courts not to apply its principles in the event that the other state (or tribe or country) has not adopted a similar statute.

¶15      Under the UCCJEA, a Utah court has jurisdiction to make an initial custody determination [8] only if any one of several different jurisdictional prerequisites are met. Applicable here, a Utah court has jurisdiction if Utah is “the home state of the child on the date of the commencement of the proceeding.” Utah Code Ann. § 78B-13-201(1)(a). The UCCJEA defines “home state” as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.” Id. § 78B-13-102(7). Here, the Petition, which DCFS filed in June 2014, alleged that Child lived in Duchesne County, Utah and that Child was born in 2012. Although the Petition did not specifically allege that Child had lived in Duchesne County for six consecutive months prior to the filing of the Petition, the Petition did not allege that Child had ever lived in any other state, country, or Indian reservation. The reasonable inference to be drawn from the Petition is that Child had lived in Duchesne County, and not on any Indian reservation, from the time he was born in 2012 all the way through June 2014. Mother does not argue otherwise, and she even concedes on appeal that “the juvenile court may have had jurisdiction at the commencement of the case.” Therefore, we are satisfied that Utah was Child’s home state at the commencement of the proceedings, and the juvenile court therefore had jurisdiction under section 201 of the UCCJEA to make an initial custody determination regarding Child.

[8] An “initial determination” is defined in the UCCJEA as “the first child custody determination concerning a particular child.” See Utah Code Ann. § 78B-13-102(8). And a “child custody determination” is defined as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or parent-time with respect to a child.” Id. § 78B-13-102(3).

¶16      “Once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction in accordance with the UCCJEA or a similar act.” Nevares, 2016 UT 39, ¶ 12, (citing Utah Code section 78B-13-202); see also Utah Code Ann. § 78B-13207(1) (providing that a Utah court can decline to exercise its jurisdiction if that court determines that it is an inconvenient forum and that another court is a more appropriate forum); In re Z.Z., 2013 UT App 215, ¶ 11, 310 P.3d 772 (stating that, once a court makes an initial custody determination, it has “exclusive, continuing jurisdiction over the custody determination it made”). The juvenile court did not ever relinquish its jurisdiction over the case, whether pursuant to section 207 of the UCCJEA or any other statute.

¶17      Mother argues, however, that the fact that Child ended up living in Whiterocks—a community within the exterior boundaries of the Uintah and Ouray Reservation—changed everything, and effectively divested the juvenile court of jurisdiction over Child and vested jurisdiction in the tribal court. We disagree with this contention for three reasons.

¶18      First, as discussed above, Utah was Child’s home state when the juvenile court made its initial custody determination, and the juvenile court did not relinquish its jurisdiction. Once the juvenile court made its initial custody determination, it retained exclusive and continuing jurisdiction until either (a) it determined that Child no longer had “a significant connection” with Utah and that “substantial evidence is no longer available in [Utah] concerning” Child; or (b) the juvenile court or “a court of another state” determined that “neither the child, nor a parent, nor any person acting as a parent presently resides” in Utah. See Utah Code Ann. § 78B-13-202(1)(a)–(b). The juvenile court did not make either of those determinations; indeed, it did not even undertake an inconvenient forum analysis under section 207. See Id. § 78B-13-207(1). Moreover, there is no indication in the record that any “court of another state,” including the tribal court, ever made a specific determination that Child and both of his parents had moved outside of Utah. Thus, because neither of the necessary conditions for loss of jurisdiction occurred, the juvenile court maintained jurisdiction over Child throughout the proceedings.

¶19      Second, although the exact timing is not completely clear, the record establishes that Mother’s parents moved to Whiterocks after DCFS filed the Petition. This move did not divest the juvenile court of its exclusive and continuing jurisdiction. See Z.Z., 2013 UT App 215, ¶ 16 (observing that parties cannot divest the juvenile court of its exclusive, continuing jurisdiction by relocating during the pendency of a custody proceeding).

¶20      Finally, although we acknowledge that tribal law issues have not been exhaustively briefed in this case, we have not yet seen any cogent argument, under any of the tribal laws that have been cited to us, in favor of tribal court jurisdiction. As far as we have been told, under tribal law the tribal court has jurisdiction only “over any Indian or Member child . . . and over all persons having the care, custody or control of such children.” See Law and Order Code of the Ute Indian Tribe of the Uintah and Ouray Reservation Utah § 4-3-1 (2013). As noted, all parties are in agreement in this case that Child is not a member of the Ute Indian Tribe, and is not an “Indian Child” under ICWA. Therefore, at least based on what has been cited to us, it does not appear that tribal law gives the tribal court jurisdiction over Child [9].

[9] Moreover, even if the tribal court did have jurisdiction over Child, that jurisdiction would apparently be concurrent with the juvenile court, rather than exclusive. See Law and Order Code of the Ute Indian Tribe of the Uintah and Ouray Reservation Utah § 1-2-6 (2013) (stating that “[t]he jurisdiction invoked by this Code over any person, cause of action, or subject shall be concurrent with any valid jurisdiction over the same of the courts of the United States, any state, or any political subdivision thereof”).

¶21      Accordingly, we conclude that the juvenile court had jurisdiction at the outset of the case to make an initial custody determination with regard to Child, and that the juvenile court never lost that jurisdiction at any point during these proceedings. The juvenile court’s determination that it had jurisdiction was therefore correct.


¶22      Second, Mother argues that the juvenile court erred by declining her invitation to communicate with the tribal court regarding the jurisdictional issues presented here. To support her argument, Mother relies nearly entirely upon her citation to rule 100 of the Utah Rules of Civil Procedure.

¶23      On its face, however, rule 100 does not apply. That rule is titled, “Coordination of Cases Pending in District Court and Juvenile Court,” and we infer from its title as well as from various portions of its text that the rule was intended to apply only to situations in which multiple cases are simultaneously pending in Utah state courts (whether district or juvenile). In addition to the rather clear titular language, the rule also contains provisions discussing whether to “consolidate cases within a county” or to “transfer a case to the court of another county,” provisions that make no sense in an interstate context. See Utah R. Civ. P. 100(d)(1)–(2). Furthermore, the rule contains references to Utah Code of Judicial Administration 3-108, see id. R. 100(e), a rule discussing the manner in which Utah senior or active judges may preside over cases outside their usual jurisdictional ambit, and contains references to domestic relations “commissioners,” who are Utah quasi-judicial officers that preside over domestic relations cases in certain Utah judicial districts, see id. R 100(b); see also Utah R. Jud. Admin. 3-201. In our view, rule 100 does not apply in the interstate context.

¶24      Communication between judicial officers in the interstate context is instead covered by the UCCJEA, which specifically provides that “[a] court of this state may communicate with a court in another state concerning a proceeding” that invokes the UCCJEA. See Utah Code Ann. § 78B-13-110(1) (emphasis added).

As noted, the statute directs Utah courts to treat Indian tribes as “states” under the UCCJEA. Id. § 78B-13-104 (stating that a “court of this state shall treat a tribe as a state” for purposes of UCCJEA jurisdictional analysis). Thus, when an interstate jurisdictional issue arises under the UCCJEA, a Utah court may contact the court in the other state/tribe to discuss the jurisdictional quandary.

¶25      We note that the UCCJEA uses the permissive term “may,” rather than a mandatory term such as “must” or “shall,” in describing a Utah court’s responsibility to communicate with a court of another state or tribe. The use of the term “may” means that a court is certainly authorized to communicate with a court of another state, but absent unusual circumstances is not necessarily required to do so. See Utah Code Ann. § 68-3-12(1)(g) (LexisNexis 2016) (indicating that “‘may’ means that an action is authorized or permissive”); see also Card v. Card, 2016 UT App 233, ¶ 3, 391 P.3d 264 (per curiam) (stating that “a statute’s use of the word ‘may’ indicates a court’s discretionary power” (citation and additional internal quotation marks omitted)); State v. Draper-Roberts, 2016 UT App 151, ¶ 14 & n.5, 378 P.3d 1261 (stating that “[a]ccording to its ordinary construction the word ‘may’ means permissive,” and indicates that something is “optional” and “not required” (citations and internal quotation marks omitted)).

¶26      When a statute indicates that a court “may” take a certain action, we review the court’s decisions for abuse of discretion. See Mota v. Mota, 2016 UT App 201, ¶ 6, 382 P.3d 1080 (stating that “a statute’s use of the word ‘may’ indicates a court’s discretionary power, the exercise of which we review for an abuse of discretion”). Our supreme court has instructed that a district court abuses its discretion “only if its decision was beyond the limits of reasonability,” an event that occurs when the district court has taken actions that are “inherently unfair” or that “no reasonable person would take.” Ross v. State, 2012 UT 93, ¶ 57, 293 P.3d 345 (brackets, citation, and internal quotation marks omitted).

¶27      Here, the juvenile court’s decision to decline to contact the tribal court was not an abuse of discretion. As discussed, Mother stipulated to the juvenile court’s jurisdiction, and the juvenile court never concluded that it did not have jurisdiction or that a more convenient forum existed; Mother’s parents’ relocation to Whiterocks did not divest the court of its exclusive, continuing jurisdiction; and no party gave the juvenile court any credible reason to believe that, even under tribal law, jurisdiction over this case should rest with the tribal court. Given these facts, we cannot conclude that the juvenile court abused its discretion when it elected not to contact the tribal court [10].

[10] As noted, the applicable statutory provision does not require a Utah court to communicate with a court of another state or tribe in the UCCJEA context. Despite the lack of compulsion, we note that in cases like this one—where the sister court in question is the court of a sovereign Indian tribe housed in relatively close proximity—principles of comity, respect, and good community relations counsel strongly in favor of making a communication.


¶28      The juvenile court had jurisdiction over this case from the outset, and properly exercised its exclusive and continuing jurisdiction to make a child custody determination. Although it may have been advisable for the juvenile court to communicate with the tribal court in this case, we cannot conclude that the juvenile court abused its discretion in declining to do so. Accordingly, we affirm.

Utah Family Law, LC | | 801-466-9277

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