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John v. John – 2023 UT App 103

John v. John – 2023 UT App 103

THE UTAH COURT OF APPEALS

LUCAS ALLEN JOHN,

Appellee,

v.

CASSANDRA KATHLEEN JOHN,

Appellant.

Opinion

No. 20210506-CA

Filed September 14, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

Commission Joanna Sagers

No. 164904953

Benjamin K. Lusty, Attorney for Appellant Mary Deiss Brown, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        In Lucas Allen and Cassandra Kathleen John’s divorce decree, the district court gave Lucas[1] sole legal and physical custody of the parties’ daughter, Child. The decree gave Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the reunification therapist.” The court ordered that Cassandra’s virtual parent-time “not be . . . monitored” but that her in-person parent-time be “subject to line-of-sight supervision.” The court then outlined a “reunification” plan, with the goal of Cassandra’s eventual transition to unsupervised parent-time with Child.

¶2        Cassandra contends that the district court erred by ordering supervised in-person parent-time without making the statutorily required finding of “evidence that [Child] would be subject to physical or emotional harm or child abuse . . . from [Cassandra] if left unsupervised with [her].” Utah Code § 30-3-34.5(1).[2] Cassandra also forwards multiple arguments in support of the assertion that the court erred by failing to provide, as required by statute, “specific goals and expectations” for her to meet “before unsupervised parent-time may be granted.” Id. § 30-3-34.5(5). We conclude that the district court made an adequate finding of evidence that Child would be subject to physical or emotional harm from Cassandra if left unsupervised with her, and we conclude that each of Cassandra’s arguments regarding specific goals and expectations is either mistaken or unpreserved. We therefore affirm.

BACKGROUND

¶3        Lucas and Cassandra married in March 2014. Child was born in September of that year. Cassandra had “engaged in drug use over the years,” and “even though [Cassandra] was a stay-at-home mom,” Lucas “hired a baby-sitter to take care of [Child] . . . because of [Cassandra’s] drug use” and because “he feared for [Child’s] safety.”

¶4        Soon after Child was born, Cassandra became pregnant with the parties’ second child. When the second child was born, the baby “had substances in her system,” “indicat[ing] that [Cassandra had been] engaging in activities that were potentially harmful to the . . . child.” This child died shortly after her birth.[3]

¶5        The parties separated around May 2016, and Cassandra moved in with her boyfriend later that year. In August 2016, Lucas petitioned for divorce. The next month, he moved for temporary orders to grant him sole legal and physical custody of Child. He also requested that Cassandra’s visitation time with Child be supervised and that Cassandra be ordered to submit to drug testing.

¶6        Around this time, Lucas and Cassandra were together “at a local restaurant” when Cassandra “took [Child], put her in the front seat of [a] truck without any car seat or any appropriate child restraints and then drove off,” hitting Lucas with the truck in the process. A temporary protective order was entered against Cassandra because she had attempted to run Lucas over with her truck and abscond with Child. A hearing on the protective order was held in October 2016, at which the commissioner recommended dismissal of the protective order,[4] entry of a mutual restraining order, and the granting to Cassandra of “unsupervised parent time . . . with no overnights.”

¶7        On December 8, 2016, a hearing was held on Lucas’s Motion for Temporary Orders. Following the hearing, the court entered mutual restraining and no-contact orders against the parties, awarded Lucas temporary sole legal and physical custody of Child, and directed Cassandra to “submit to a hair follicle [drug] test before 5:00 p.m.” that day. The court gave Cassandra parent-time “with . . . no overnights” and provisionally ordered that it be “facilitated” by a particular family friend. The court further instructed that if Cassandra’s drug test came back positive, Lucas’s attorney was to “call the court to schedule a telephone conference to determine the status moving forward.”

¶8        Cassandra’s hair follicle drug test came back positive for both cocaine and marijuana, and another hearing was held on December 20, 2016. Following that hearing, the court ordered that Cassandra’s parent-time be subject to line-of-sight supervision and that Cassandra complete another drug test by January 9, 2017.

¶9        On January 9, 2017, Cassandra submitted an “unofficial” drug test showing negative results for a collection taken that day. At a review hearing on January 30, 2017, however, the commissioner was “concern[ed]” because the results of the January 9 unofficial test were “drastically different” than the results of the test on December 8, 2016. The commissioner therefore directed Cassandra to complete another drug test that day. The commissioner also ordered “continue[d] . . . supervised parent time, status quo,” and set a review hearing for February 13, 2017.

¶10 Cassandra’s drug test on January 30, 2017, came back positive for marijuana, and following the February 13 review hearing, the court ordered “expanded supervised parent-time” with “no overnight visits.” It also ordered Cassandra to submit to a urinalysis by March 8, 2017, and it set another review hearing for March 13, 2017.

¶11 Cassandra took the required test before the March 13 review hearing, but she failed to submit the results. Her counsel (Counsel) nevertheless proffered at the hearing that the test had come back “positive for THC.” The court ordered that Cassandra’s parent-time remain subject to “direct line-of-sight” supervision “with no overnight visits.”

¶12 “At some point”—likely during April 2017—Cassandra “moved to Idaho for several months.” After a “stint in Louisiana,” she then moved to Iowa and lived there with a boyfriend. Once she had left Utah, Cassandra did not request any review hearings or make any attempt to exercise in-person parent-time with Child. As a result, she was “around [Child] physically on [only] three occasions” between January 2017 and June 2021.

¶13      Eventually, in March 2021, after compromise negotiations proved only minimally successful, the court held a bench trial on the parties’ outstanding issues. At the time of trial, Child was six years old.

¶14      Following trial, the court held a hearing to orally announce its rulings. To Cassandra’s credit, the court found that she was “trying to make some changes in her life,” including engaging in “therapy to resolve anger, trauma, and substance abuse” issues, and that she “appear[ed] to be improving.” But the court found that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” “consider[ed] her own needs first and primary over [Child]’s,” and might not be “completely emotionally stable.” The court also found that Cassandra had engaged in “instances of violence” in the past (including the one that led to the temporary protective order noted above). And it found that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were due to her “history with drug abuse.” Based on the foregoing findings, the court awarded Lucas sole legal and physical custody of Child.

¶15 The court then granted Cassandra supervised in-person parent-time at a frequency to be determined by a therapist and unsupervised virtual parent-time at least once per week. The court said that it thought there ought to be “some sort of ramping up” of supervised in-person visits and that a therapist should “come up with a schedule” for those visits after talking with Child, Cassandra, and Lucas to “see what’s appropriate.” The court further explained, “I expect that the therapist will come up with so many overnights so that [Cassandra] can practice with all of those things, and then once she’s completed the therapist’s plan, then I would say that the standard relocation statute would then become effective.” Counsel then asked whether “at that point”—i.e., when Cassandra had completed the therapist’s plan—“supervision would no longer be required.” The court responded, “I don’t know, Counsel,” “because there’s . . . some ongoing drug issues . . . and we don’t have any evidence . . . that she would have clean tests.”

¶16      Counsel then asked if the court was going to make findings as to whether Child “would be in danger if she were with [Cassandra unsupervised].” In response, the court said:

[G]iven that [Cassandra]’s not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger; but given also that she hasn’t been around [Child] physically except for three times, I just think that’s problematic.[5]

¶17      Counsel then said, “So . . . [a]fter two things occur, if I understand correctly, then [Cassandra]’s parent time will be according to [section] 30-3-37 and unsupervised.” He listed “one, the completion of the ramp up period as recommended by the therapist; and two, . . . submitting to the Court a clean drug test.” He asked, “Is that accurate?” The court responded that it could not “say that [Cassandra]’s going to go immediately to unsupervised [visitation] after the ramp up” because the court might “need some more information at that point.”

¶18 Counsel then informed the court, “My understanding, your Honor, is that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court replied, “I . . . don’t know what the therapist is going to say, Counsel. So I think it’s a little bit speculative. . . . What I’m going to have to see is what the therapist recommends, and then I can give you some further instructions at that point.” It added, “But yes, we do need her to have clean drug tests . . . .” Then the court, Counsel, and Lucas’s attorney discussed what the drug test requirements would be.

¶19      Counsel later asked, “Your Honor, what would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The court asked Lucas’s attorney if she “want[ed] to respond,” saying, “[Counsel] wants criteria on how to remove supervision.” Lucas’s attorney explained that she did not think there was “enough information . . . to anticipate . . . the factors that [the court was] going to have to consider” and that it seemed reasonable to “notice up a hearing after [the parties got] a lot of these things going[] and have enough information to go ahead.” But the court indicated that it was “not going to notice up a hearing at [that] point.” It directed the parties to “get the therapist on board first, and . . . to do that within three weeks,” then to get “the drug test filed.” The court said, “[A]fter I’ve reviewed these things[,] . . . I’d like to make sure that Cassandra is complying with everything, and that she’s able to do what she needs to do.” It further stated, “So I would like to do that as quickly as possible, [Counsel], but I don’t know how long of a period it’s going to take because it will also depend on whether or not your client is able to do everything that’s required. I hope that she does.”

¶20      Counsel then, again, stated his interpretation of the process the court was explaining:

[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the criteria for . . . when supervision will be lifted until [Cassandra] has complied with everything the therapist has said and filed clean drug tests. Then we can come back to have a hearing to determine what the criteria are for supervision to be lifted; is that accurate?

¶21 At that point, the court turned to Lucas’s attorney and asked whether she “[had] any objection” to the process Counsel had just summarized or whether she thought that supervision “should be lifted” as soon as Cassandra “completes the criteria” the court had already identified. She said that she thought “there might be concerns” even after Cassandra completes reunification therapy, although she did not “know what they would be.” The court then said, “Let’s just get through the therapy portion, and then I want to see what the reports are. . . . It could be likely that if she’s successful with all of th[e] things [the therapist recommends] that the Court will lift supervision at that time.”

¶22      Counsel once again spoke, seeking “to clarify” certain matters by asking, “[I]f after [Cassandra] has met with the therapist and complied with the therapist, the therapist recommends that supervision be lifted, . . . then would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” The court replied that it “[did not] know the answer to that yet,” saying, “[B]ut let’s go through that, and if the therapist recommends it, if we need to have a discussion with the therapist present, then we might need to do that, okay? Because I might . . . have some questions.”

¶23      Counsel then asked the court to order that the therapist be an Association for Family and Conciliation Courts therapist, and the court agreed. Then the court said, “If there’s no other questions, I do need to get to my next hearing.” Counsel initially replied that he had “[n]o other questions” but then said, “Last question, your Honor. . . . [I]s the review hearing going to be . . . before you or the Commissioner?” The court answered that the review hearing would be before the court.

¶24      The court concluded the hearing and memorialized its oral rulings into written Findings of Fact and Conclusions of Law and a Decree of Divorce. Cassandra appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      On appeal, Cassandra contends that the district court erred in two ways when it ordered supervised parent-time. First, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(1) because the court “did not find that Cassandra poses a present threat of harm” to Child. Second, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(5) because the court did not “provide specific goals and expectations for Cassandra to meet” in order to be granted unsupervised parent-time. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

ANALYSIS

  1. Adequacy of the District Court’s Findings in Support of
    Supervised Parent-Time

¶26      Cassandra argues that the district court erred in ordering supervised parent-time because it did not make the finding that the Utah Code mandates as a prerequisite to supervised parent-time. The pertinent portion of the relevant provision reads as follows:

When necessary to protect a child and no less restrictive means is reasonably available . . . , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5­114, from the noncustodial parent if left unsupervised with the noncustodial parent.

Utah Code § 30-3-34.5(1).

¶27 As an initial matter, we agree with Cassandra’s assertion that this statute means that the court must find a current risk of harm to the child from unsupervised parent-time, “rather than merely [a] past or historic risk of harm.” (Emphasis added.) To require “evidence that the child would be subject to . . . harm or . . . abuse . . . if left unsupervised with the noncustodial parent,” id. (emphasis added), is to require evidence of harm or abuse during a potential situation that would occur, if at all, in the future.[6] Thus, before ordering supervised parent-time, a court must find that there is evidence that harm or abuse could occur in the future, not merely that harm or abuse, or a risk of harm or abuse, occurred or was present in the past.

¶28      That is not to say that the existence of harm, or a risk of harm, from a noncustodial parent in the past has no bearing on whether there is a risk of harm from that parent in the future. Evidence that harmful or potentially harmful circumstances from the past have recurred or have not substantially abated could certainly be probative of whether there is a risk of harm in the future.

¶29      Moreover, a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to . . . harm or . . . abuse” if left alone with the noncustodial parent. Id. (emphasis added). For this reason, we, like Cassandra, conclude that a finding of a presently existing threat or risk of harm or abuse is sufficient to support supervised parent-time under section 30-3-34.5(1).

¶30      However, we disagree with Cassandra that “the district court did not find that [she] presently poses a threat of harm to [Child] if she were [to be left] unsupervised with [Child].”

¶31      Cassandra’s argument here is a challenge to the adequacy of the district court’s findings, not to the sufficiency of the evidence.[7] When we assess the adequacy of findings, “we review the [trial court’s] written and oral findings of fact together to determine if they are [adequate] to support the trial court’s rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may be stated in writing or orally following the close of the evidence.”). This is particularly true when “the written findings are incomplete, inadequate, or ambiguous.” Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1121 (Utah 1984). In those instances, the written findings “may be elaborated [on] or interpreted (in respects not inconsistent therewith) by reference to the trial court’s . . . oral explanation of the decision.” Id. This is one of those instances.

¶32      Cassandra supports her argument that the court failed to make the requisite finding by pointing to only one statement from the district court’s written findings: “[I]t is not clear whether [Cassandra] is still a danger to [Child].” But the court orally supplied additional findings and reasoning. When asked if it was going to make findings as to whether “[Child] would be in danger if she were with [Cassandra],” the court replied, “[G]iven that [Cassandra has] not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger . . . .” (Emphasis added.) The court then added that it also found it “problematic” that Cassandra “[had]n’t been around [Child] physically except for three times” during the preceding four-plus years. Because Counsel, in posing the question, employed the phrase “[Child] would be in danger if she were with [Cassandra]” to summarize the requirement of a current threat of harm or abuse, we take the court’s responsive statement that Cassandra “potentially could still be a danger” to Child to be a finding of a current threat of physical or emotional harm to Child if Child were to be left unsupervised with Cassandra.[8]

¶3        Our reading of the court’s answer to Counsel’s question is bolstered by the fact that it came on the heels of additional findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own needs first and primary over [Child]’s,” that Cassandra still might not be “completely emotionally stable,” and that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were linked to her “history with drug abuse.” When the court’s response to Counsel’s question is viewed in the context of these and other findings, its import is unmistakable: Cassandra has a history of drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted, Cassandra has failed to provide a negative drug test; six-year-old Child has been in Cassandra’s physical presence only three times over the course of four-plus years; and Cassandra remains immature, potentially emotionally unstable, and self-centered in relation to Child; accordingly, Cassandra “potentially could still be a danger” to Child in the present. This finding is adequate to support the court’s order of supervised parent-time.[9]

  1. The District Court’s Provision of Specific Goals and Expectations to Discontinue Supervised Parent-Time

¶34 When a court orders supervised parent-time, it must “provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on appeal states at least two, and perhaps three, independent arguments to support her assertion that the district court did not comply with section 30-3-34.5(5). We disagree with her first argument, and we conclude that her second possible argument and her third argument are unpreserved.

¶35      Cassandra’s first argument regarding the district court’s compliance with section 30-3-34.5(5) is that the court’s orders “are silent on the question of what conditions Cassandra must meet prior to [the] lifting of supervised parent time” and that, because of this purported silence, “the district court erred.” Cassandra is mistaken, however.

¶36      After Counsel informed the court of his understanding that the court “need[ed] to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed,” the court said that it “need[ed] her to have clean drug tests” and also directed the parties to “get [a] therapist on board . . . within three weeks.” Moreover, Cassandra acknowledges that the court ordered her to complete reunification therapy. The court repeated these requirements multiple times. Plainly, the court provided three specific goals or expectations for Cassandra to meet before unsupervised parent-time would be granted: (1) Cassandra needed to provide clean drug tests in connection with her supervised visitation; (2) Cassandra needed to work with Lucas to identify a therapist within three weeks; and (3) Cassandra needed to complete reunification therapy as determined by the therapist. Thus, Cassandra’s first argument fails.

¶37      Next, Cassandra asserts that the district court did not comply with Utah Code section 30-3-34.5(5) because the court did not say that “completion of reunification therapy . . . [was] a condition precedent to lifting supervised parent time.”[10] What Cassandra means by this assertion is not clear. If what she means is that completion of reunification therapy is not a condition the court expected her to meet before supervision would be lifted, this is merely a restatement of Cassandra’s first argument and Cassandra is simply mistaken, as we have explained. On the other hand, if what she means is that to comply with section 30-3-34.5(5), a court must identify at the time it orders supervised parent-time comprehensive list of the things the parent must do to receive a guarantee that supervision will be lifted, she did not preserve this potential issue for our review.

¶38      “In order to preserve an issue for appeal,” the appellant must have “presented [it] to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). “For a trial court to be afforded an opportunity to correct [an asserted] error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority.” Id. (cleaned up). As to the second of these requirements, “an objection must at least be raised to a level of consciousness such that the trial court can consider it.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (cleaned up).

¶39      Here, Counsel indicated to the district court that his “understanding” was “that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court then identified or reiterated three specific criteria for Cassandra to meet, as we have explained. Counsel then repeated, over the course of a lengthy discussion, essentially the same question three times. First, he asked, “[W]hat would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The second time he described “a two-step process” in which the parties “won’t be able to arrive at the criteria for” lifting supervision “until [Cassandra] has complied with everything the therapist has said and filed clean drug tests” and they then “come back to have a hearing to determine what the criteria are for supervision to be lifted.” He asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked a third time whether—“after [Cassandra] has met with the therapist and complied with the therapist”—if “the therapist recommends that supervision be lifted, . . . would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” Each of these questions came after the court had iterated or reiterated specific initial expectations for Cassandra to meet to have supervision lifted. In that context, each of Counsel’s foregoing questions can be fairly understood as an attempt to clarify when or whether additional expectations would be set, not as an objection to the fact that the court had not identified a comprehensive set of expectations at the outset.

¶40      Indeed, after the second of the foregoing questions from Counsel, the court turned to Lucas’s attorney and asked if she objected to the process Counsel had just summarized. This clearly indicates that the court did not understand Counsel’s question to be an objection but rather an attempt at clarification. Thereafter, Counsel emphasized the notion that he was attempting to gain clarity rather than objecting when he explicitly prefaced the third of his questions by stating that he was seeking “to clarify.” Then, after the court reiterated for the third time its initial expectation— for Cassandra to “go through” therapy—it said, “If there’s no other questions, I do need to get to my next hearing.” Cassandra’s counsel responded not by objecting but by saying: “Last question, your Honor. . . . [Ills the review hearing going to be . . . before you or the Commissioner?”

¶41      Given the foregoing, we conclude that even if Counsel was trying to raise an objection to the fact that the district court had not provided a comprehensive set of expectations for Cassandra to meet in order to have supervision of her parent-time lifted, he did not raise that objection to a level of consciousness in the mind of the court such that the court could consider it. Accordingly, this potential issue was not preserved for our review. See Cruz, 2005 UT 45, ¶ 33; State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (“A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.” (cleaned up)).

¶42 Finally, Cassandra argues that the expectation that she complete reunification therapy as determined by a therapist before she is allowed unsupervised parent-time violates section 30-3-34.5(5) because that section “does not allow the district court to delegate the [setting of conditions for the lifting of supervision] to a therapist.” Again, she did not raise this issue below. Because it is unpreserved, we do not address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (stating that “an argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved” (cleaned up)).

CONCLUSION

¶43 The district court made an adequate finding that Cassandra posed a present risk of harm to Child if Child were to be left unsupervised with her. Additionally, Cassandra’s first argument in support of a conclusion that the district court failed to comply with Utah Code section 30-3-34.5(5) by not providing specific goals and expectations for Cassandra to meet before being granted unsupervised parent-time is mistaken, and her other arguments in support of that conclusion were unpreserved. We therefore affirm.

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

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Are family members allowed to be character witnesses in a divorce case?

Questions regarding one’s character as a spouse and parent often arise in a divorce and/or child custody case, and family members are often some of the best, if not the best, character witnesses on subjects that frequently arise in divorce and child custody cases. What kinds of questions? For example, questions about a party’s parental fitness and character may because family members are often the most percipient witnesses, meaning they are those who have observed a party as a parent most often, most accurately, and most reliably.

As you might have guessed, one of the reasons that family members are not seen as the best witnesses generally (whether a fact witness or character witness) is because there will always be a question of whether your mom or dear uncle Milt is a reliable source of accurate information about you, as opposed to being someone who will propagandize for you irrespective of the truth. It’s not unreasonable to presume that a family member might choose loyalty to you over being completely honest about you.

Sometimes, a family member may be your best, even your only, witness on a particular issue. So, if you aren’t afraid that your family member has dirt on you, and if you trust that your family member will both be honest and come across as honest, don’t write off a family member as a witness merely for being a family member.

Some people confuse a character witness with “a witness who will say things that are helpful to my case, so that the court will side with me.” It’s understandable if someone who is not an attorney believes that a divorce or child custody case is a popularity contest, but it’s not. If your witness doesn’t have believable testimony to give on a relevant issue, you shouldn’t call that witness to testify. For example, if you were to bring in any witness, family member or otherwise, to say that generally your spouse is mean and therefore should be treated harshly when it comes to dividing marital assets, such witness testimony is not only totally irrelevant evidence, but wasteful of court time and thus very irritating to the judge. Additionally, bringing in a dozen character witnesses to say the same thing about your character or the character of your spouse is unnecessarily cumulative and the court would almost certainly not permit a dozen witnesses to say duplicative things when one or two, maybe three witnesses would suffice.

Sometimes, your attorney may advise you not to call a family member as a witness to protect you from having that family member intentionally or inadvertently say things about you that paint you in a bad light. Sometimes, your attorney may advise you not to call a family member as a witness because you are unsure of what the witness would say or you know that the family member is a chatterbox who doesn’t know when to shut up.

Bottom line: 1) family members are not barred from being character witnesses; 2) family members are often the best or among the best of your character witnesses; 3) don’t be afraid to utilize family members as character witnesses, as long as they will come across as credible witnesses who won’t intentionally or inadvertently say damaging things about you; and 4) avoid poisoning the opinion of the court against you by ensuring that you do not call “character witnesses” to testify on subjects and issues that have nothing to do with your or your spouse’s character.

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

https://www.quora.com/Why-arent-family-members-allowed-to-be-character-witnesses-in-a-divorce-case/answer/Eric-Johnson-311?prompt_topic_bio=1

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Would you divorce if your spouse had a child before marriage without telling you?

Would you divorce your husband if he had a child with his last relationship without telling you?

I do not believe that this would, alone, be reason to divorce your husband. He may be a good man who was a scared, confused kid back when he kept this from you. He may have matured since then. He may just have not known how to level with you (or perhaps wondered—albeit wrongly—whether he should).

If he has come to regret keeping you in the dark, if you believe that, and if he has come clean and promised that there are no other skeletons in his closet, he may be a better man for it. It may well be that he is “worth” forgiving and not worth breaking up a marriage/family over it.

If discovering his illegitimate child is just the latest in a series of other embarrassing/concerning facts that further reveal and confirm him as a) someone you did not believe him to be and b) as someone who cannot be trusted to deal with you honestly, then this latest disclosure may the proverbial straw that breaks the camel’s back. You may be more than justified in divorcing him; not because he has a child, but because he keeps secrets from you, because you simply cannot take further risks of being deceived such that you and/or your family will be victimized as a result.

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

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How can I protect my assets before getting married without prenup?

How can I protect my assets before getting married without prenup? Short answer: One option (not a very good one, frankly, but about the best there is under the circumstances as you describe them in your question) is:

1) own no major/valuable property before you are married (in other words, your spouse would probably not seek (and the court would probably not award to your spouse any part of) a portion of things like your clothes and personal effects, so you could live in a house and drive a car you lease and thus have no such “big ticket” items that could be sold and the proceeds of sale awarded to your spouse in divorce;

2) save nothing in the bank or in investments and retirement accounts, so that there is nothing like in which your spouse could try to claim an interest; and

3) ensure that you do not earn more than your spouse does, so that your spouse cannot make an easy argument for alimony.

Your real question may be this instead: How can I prevent losing too much (being treated unfairly) financially in divorce? If that is your question, it is a very good and very common one. After all, most reasonable people would agree that what a couple acquires together during marriage is considered “their” property, “our” property, instead of “there’s yours and there’s mine”. For example: a couple marries and buys a house together in which they live for years. Sure, it may have been that one spouse worked full time while the other stayed home to take care of the kids and the house, but they are a team, partners (in both a legal sense and a practical sense).

Another example: Saving up for retirement. It is common for one spouse to be better able to pursue a career and advance in it (thus making more money for retirement) when the other spouse stays home with the children (at least while they are quite young) and keeps house. Both spouses understand that one hand washes the other. The decision to purchase the house and the decision to have one spouse be the primary breadwinner and the other the children’s primary caretaker was made together, for mutual benefit. The spouse with the full-time job knew in advance that he/she would be sharing the house and retirement funds with his/her spouse and worked for the money needed to fund these things. It is understood that these things are marital property that would be divided equally in the event of divorce. It makes sense. But there are other issues that are not so clear cut. Many people—mostly husbands, but a growing number of wives—have this sense that:

  1. a) “divorce should not result in my being financially exploited”;
  2. b) “divorce should not result in being robbed of what was mine before marriage and what I acquired for myself during marriage”;
  3. c) “I shouldn’t have to continue to support a spouse financially if I’ve done nothing to make divorce necessary; if my spouse wants out of the marriage and files for divorce, then he/she should do so with the understanding and expectation that with the end of the marriage comes the end of any and all of my obligations to support my spouse due to the fact that he/she is no longer my spouse”;
  4. d) spouses who: don’t carry their fair share of the weight during the marriage, who don’t do their best to contribute, and/or become financially dependent upon the other spouse as a result of being lazy (as opposed to spouses who are or become, due to disabilities beyond their control, financially dependent on the other spouse); and/or spouses who abuse the other spouse and/or children, commit adultery, or waste marital resources (i.e.,, refuse to uphold their marital responsibilities with impunity); and
  5. e) spouses who are moochers in divorce when they demand that the people to whom they are no longer married nevertheless keep supporting them financially. There is something inherently unfair in that concept.

In response to these questions and concerns the best answers for me personally are:

One, if I am truly worried that my marriage could end in divorce to a gold digger, the solution does not lie in trying to figure out a way to protect my assets but in not marrying the suspected gold digger.

Two, I did not marry to keep tabs on how much I have to lose in divorce. Yes, there are risks in trusting my spouse with my welfare (both physical and emotional), but the opportunity to enjoy a happy marriage is worth the risk to the right person.

Now please understand: I get that sometimes you can do everything right and marry someone who was great but who later changed and turned on you. That is sad, but not enough of a reason to avoid marriage, in my opinion. Well-rounded married people are generally much happier than well-rounded single people. Do not deny yourself the joys and blessings of marriage out of the fear of divorce. There is no meaning to success without the risk of and the fight against failure.

Three, there is no more reliable and cost-effective way to protect your assets in divorce than with some wise financial planning and a well-drafted prenuptial agreement.

Warning: even the most well-drafted prenuptial agreements are not iron-clad, but they are better than nothing (far better) if you are concerned about protecting yourself from being raped and pillaged financially in divorce.

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

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Why can’t judges use their own knowledge of the law to fill in any gaps that the lawyers may have missed?

Why can’t judges use their own knowledge of the law to fill in any gaps that the lawyers may have missed?

Actually, they can do just that, to an extent.

Their power and discretion are not unlimited, but if they catch certain errors and omissions in the lawyers’ pleadings and arguments, judges not only may note and take steps to correct those errors and omissions, but in most situations they are obligated to correct the legal errors and omissions they catch, so that they do their jobs as well and as effectively as they can in the administration of justice. This does not mean that a court must “save” a sloppy or careless lawyer from himself or even save the client from the consequences of the errors and omissions his/her sloppy or careless lawyer causes. This also does not mean that a judge must (or even legally can) “level the playing field” if one party’s lawyer is better than the other, although sometimes you will see that happen (and truth be told, as long as the judge’s attempts to level the playing field don’t come at the expense of or prejudice to the more competent attorney’s efforts to do his/her job properly and effectively, it’s hard to find anything truly morally or ethically wrong with it, except perhaps the risk of going too far).

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

https://www.quora.com/Why-cant-judges-use-their-own-knowledge-of-the-law-to-fill-in-any-gaps-that-the-lawyers-may-have-missed/answer/Eric-Johnson-311

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How can a man show emotion to his woman without her taking it for weakness?

How can a man show emotion to his woman without her taking it for weakness?

He can’t. The value in a man showing his wife or girlfriend genuine emotion and vulnerability lies in the fact that it shows he has the decency and the strength of character to risk embarrassment or rejection or other potential harm (while hoping to draw closer to you and build a better relationship with her) by showing genuine emotion and vulnerability.

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

https://www.quora.com/How-can-a-man-show-emotion-to-his-woman-without-her-taking-it-for-weakness/answer/Eric-Johnson-311

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Do you agree with the decision to temporarily take custody from an ER doctor’s child due to potential exposure to COVID-19?

Do you think it’s fair that a judge temporarily stripped Dr. Theresa Greene, of North Miami, of custody of her 4-year-old daughter because the doctor works with COVID-19 patients?

Do you agree or disagree with the decision of Circuit Court Judge Bernard Shapiro to temporarily take away custody of an ER doctor’s child, and give her ex-husband full temporary custody, due to the potential her child could be exposed to COVID-19?

I disagree with Judge Shapiro.

Up front I acknowledge that reasonable minds can differ on whether Judge Shapiro made the correct decision (I think it’s more reasonable not to rule as he did). And I don’t know all the facts but having been a divorce and family law attorney for the past 23 years, on its face this has the look and smell of a parent seeking to exploit COVID-19 worries for self-serving purposes, not for the protection of the children.

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

https://www.quora.com/Do-you-agree-or-disagree-with-the-decision-of-Circuit-Court-Judge-Bernard-Shapiro-to-temporarily-take-away-custody-of-an-ER-doctors-child-and-give-her-ex-husband-full-temporary-custody-due-to-the-potential-her-child/answer/Eric-Johnson-311

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Have you ever told a client he/she would be better off settling a case, only for the client to take the case to trial anyway?

Yes, and most of the time when a client decides to take a case to trial over a client’s advice the client does worse than he/she would have if he/she had taken the settlement offer.

But not always.

Which is why it’s so tempting to a client (and I’ve been a client myself) to believe the his/her case is the exception that will win at trial. I get it. I’ve been there. But the odds are that if you have a good lawyer and that lawyer advises you to settle, your lawyer’s advice is sound.

And a good lawyer won’t be offended if his/her client seeks a second or third opinion on whether to take the case to trial or settle, nor will a good lawyer be too proud to acknowledge that the second or third opinion is superior to his/her advice, if and when that second or third opinion turns out to be a better idea than settling.

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

https://www.quora.com/As-a-lawyer-have-you-ever-told-a-client-that-a-client-would-be-better-off-settling-a-case-and-avoiding-legal-fees-only-for-the-client-to-decide-to-take-the-case-to-trial-anyway/answer/Eric-Johnson-311

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