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Tag: Utah code

Are Divorced Parents Whose Divorce Was Entered in Utah Required to Give Any Notice When They Travel With Their Minor Children?

Yes. Utah Code § 30–3–36(2) requires:

(2) For emergency purposes, whenever the child travels with either parent, all of the following will be provided to the other parent:

(a) an itinerary of travel dates;

(b) destinations;

(c) places where the child or traveling parent can be reached; and

(d) the name and telephone number of an available third person who would be knowledgeable of the child’s location.

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

(26) Are divorced parents whose divorce was entered in Utah required to give any notice when they travel with their minor children? Yes. Utah Code § 30–3–36(2) requires: > (2) For emergency purposes, whenever the child travels with either parent, all of – Utah Divorce and Family Law – Quora

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What Are the Divorce Laws in Utah?

This is a good but very broad question. Here, in a nutshell, is a good way to start learning the answer:

If you want to know the divorce laws in Utah, you will want to read the laws and the rules of court (civil procedure and evidence) that govern divorce actions. Read about how divorce law is applied in Utah. Here are the links to all three of these things:

Read—and comprehend*—good websites (not just any websites) that explain and discuss Idaho divorce law and how it applies, and you will want to meet with an experienced, knowledgeable, and skilled attorney who is licensed in the state of Idaho to practice law to gain a better understanding of Idaho divorce law generally and how Idaho divorce law can affect you and your family specifically.

And you will want to meet with an experienced, knowledgeable, and skilled attorney who is licensed in the state of Idaho to practice law to gain a better understanding of Idaho divorce law generally and how Idaho divorce law can affect you and your family specifically. Don’t skip this step. Don’t jump over dollars to pick dimes by fooling yourself with “Just think of the money I saved by not talking to an expert on a subject that will have a profound effect on the rest of my life but of which I know nothing!”

*reading (and listening to podcasts or watching videos) does you no good if you do not in fact learn anything from it. Pay attention. Understand what you’re reading. Just reading alone doesn’t educate you. If you don’t understand the subject after reading/listening/watching, then read/listen/watch more and/or pay closer attention. No “A” is given for effort.

 

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

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I want my husband to get 0 in the divorce if he bothers me about my weight

Can I include that my husband will get 0 in the divorce if he bothers me about my weight in the prenup? 

I cannot discuss this question as it applies to all jurisdictions, but I can give you my opinions as to how I believe they apply in the jurisdiction where I practice divorce and family law (Utah). Remember, this is just my opinion, not advice. If you want legal advice as to what to do in a particular situation in a particular jurisdiction, you need to consult with your own attorney.  

First, and with sincere due respect, know that if you are that sensitive about your weight and/your fiancé, a prenuptial agreement isn’t going to solve that/those problems.  

Can you include such a provision in a prenuptial agreement? Yes, nothing can stop you from literally writing up such a provision and including it in a prenuptial agreement that your fiancé signs.  

Will such a provision be legally enforceable? That’s a different question, and the key question. 

And the answer to that question is: maybe. Be aware of this provision of the Utah Code regarding the enforceability of prenuptial agreements: 

Utah Code § 30-8-6. Enforcement. 

(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: 

(a) that party did not execute the agreement voluntarily; or 

(b) the agreement was fraudulent when it was executed and, before execution of the agreement, that party: 

(i) was not provided a reasonable disclosure of the property or financial obligations of the other party insofar as was possible; 

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and 

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. 

(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. 

(3) An issue of fraud of a premarital agreement shall be decided by the court as a matter of law. 

So if your prenuptial agreement provides that fiancé/future husband does not get alimony if he makes your weight an issue, and if denial of alimony would cause your husband to be eligible for public assistance, the “make an issue of my weight and you get nothin’” provision may not (likely would not) be enforceable.  

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

https://www.quora.com/Can-I-include-that-my-husband-will-get-0-in-the-divorce-if-he-bothers-me-about-my-weight-in-the-prenup/answer/Eric-Johnson-311  

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Does the statute that enables a spouse to not testify against their spouse carry over into divorce if the alleged crime took place during the marriage? 

I don’t know the rules as they apply in different jurisdictions, but I can tell you what the rule is in Utah, where I practice divorce and family law. 

In Utah, the rule is as follows (see Utah Rules of Evidence (URE) 502): 

Rule 502. Husband – Wife. 

(a) Definition. 

(a)(1) “Confidential communication” means a communication: 

(a)(1)(A) made privately by any person to his or her spouse; and 

(a)(1)(B) not intended for disclosure to any other person. 

(b) Privilege in Criminal Proceedings. In a criminal proceeding, a wife may not be compelled to testify against her husband, nor a husband against his wife. 

(c) Statement of the Privilege. An individual has a privilege during the person’s life: 

(c)(1) to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage; and 

(c)(2) to prevent another person from disclosing any such confidential communication. 

(d) Who May Claim Privilege. The privilege may be claimed by: 

(d)(1) the person who made the confidential communication; 

(d)(2) the person’s guardian or conservator; 

(d)(3) the non-communicating spouse to whom the confidential communication was made may claim the privilege on behalf of the person who made the confidential communication during the life of the communicating spouse. 

(e) Exceptions to the Privilege. No privilege exists under paragraph (c) in the following circumstances: 

(e)(1) Spouses as Adverse Parties. In a civil proceeding in which the spouses are adverse parties; 

(e)(2) Furtherance of Crime or Tort. As to any communication which was made, in whole or in part, to enable or aid anyone to commit; to plan to commit; or to conceal a crime or a tort. 

(e)(3) Spouse Charged with Crime or Tort. In a proceeding in which one spouse is charged with a crime or a tort against the person or property of: 

(e)(3)(A) the other spouse; 

(e)(3)(B) the child of either spouse; 

(e)(3)(C) a person residing in the household of either spouse; or 

(e)(3)(D) a third person if the crime or tort is committed in the course of committing a crime or tort against any of the persons named above. 

(e)(4) Interest of Minor Child. If the interest of a minor child of either spouse may be adversely affected, the Court may refuse to allow invocation of the privilege. 

You can learn more about the spousal privilege by clicking this link to commentary on URE Rule 502. 

 

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

https://www.quora.com/Does-the-statute-that-enables-a-spouse-to-not-testify-against-their-spouse-carry-over-into-divorce-if-the-alleged-crime-took-place-during-the-marriage/answer/Eric-Johnson-311 

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How long do you pay alimony in Utah?

The law governing the duration of alimony is pretty simple and straightforward: 

See Utah Code § 30-3-5, subsections (1)(c) and (11)(e): 

(1) As used in this section: 

***** 

(c) “Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court. 

***** 

11(e) 

(i) Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage. 

(ii) If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. 

(iii) At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage. 

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

https://www.quora.com/How-long-do-you-pay-alimony-in-NC/answer/Eric-Johnson-311  

 

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What are the primary parenting issues of concern by the court?

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

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

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

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

CONCERN FOR FATHERS. What fathers encounter far too often (not always, but far too often): denials of requests to maintain their already-existing rights of joint equal legal and physical custody that are contrary to the facts, contrary to the best interest of the children, irrational, biased, arbitrary, inequitable, discriminatory, and unconstitutional.  

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

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

 

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Abortion banned (except in certain circumstances) in Utah, effective June 24, 2022

Today, June 24, 2022, the U.S. Supreme Court overturned the decision from the 1973 case of overruled Roe v. Wade which had (until today’s decision of the Supreme Court) ruled that abortion was a constitutional right.

What does this mean for the law regarding abortion in Utah? The Salt Lake Tribune summed it up well:

“The U.S. Supreme Court on Friday, sending the power to regulate abortions back to the states and clearing the way for Utah’s trigger law[1] to go into effect.

“The trigger law – passed by the Utah Legislature in 2020 as SB174[2] – bans abortions in the Beehive State, except in these limited circumstances:

“• If it ‘is necessary to avert the death’ or if there is ‘a serious risk of substantial and irreversible impairment of a major bodily function’ of the pregnant woman.

“• ‘Two physicians who practice maternal fetal medicine concur … that the fetus has a defect that is uniformly diagnosable and uniformly lethal,’ or ‘has a severe brain abnormality that is uniformly diagnosable.’ According to the law, this does not include Down syndrome, spina bifida, cerebral palsy or any condition ‘that does not cause an individual to live in a mentally vegetative state.’

“• The pregnancy was caused by a rape or incest. Before performing an abortion, the physician would have to verify the rape or incest has been reported to law enforcement or the proper authorities.”

(Salt Lake Tribune: Utah’s abortion trigger law is now in effect after Supreme Court overrules Roe v. Wade, last reviewed at 6:55 p.m. on June 24, 2022)

The Utah Attorney General’s Office issued statement on June 24, 2022 regarding Utah’s abortion ban law, which can be accessed here: Utah Attorney General’s Office Statement on Supreme Court Abortion Ruling

———————–

[1] Currently, thirteen states have such trigger laws, which were passed by their state legislatures to ban abortion in the event that the Roe v. Wade decision were overturned.

[2] The “trigger” section of the Utah Code is:

Section 4. Contingent effective date.

(1) As used in this section, “a court of binding authority” means:

(a) the United States Supreme Court; or

(b) after the right to appeal has been exhausted:

(i) the United States Court of Appeals for the Tenth Circuit;

(ii) the Utah Supreme Court; or

(iii) the Utah Court of Appeals.

(2) The provisions of this bill take effect on the date that the legislative general counsel certifies to the Legislative Management Committee that a court of binding authority has held that a state may prohibit the abortion of an unborn child at any time during the gestational period, subject to the exceptions enumerated in this bill.

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Can I get an annulment instead of a divorce?

Many people call me asking about whether they can get an annulment instead of a divorce. Their reasons are almost always the same: “I would prefer to say that I am not divorced.” 

Although the stigma of divorce is not nearly as great as it was a generation or two ago, there are many people who still would prefer to say they are not divorced. Others may have religious reasons for seeking an annulment over a divorce. And there are some situations where divorce may disqualify someone from receiving an inheritance or similar benefit. 

I completely understand the desire to end a marriage without divorce.  

The problem for most people who want an annulment over a divorce is that there are fewer and more particular grounds for annulment than there are grounds for divorce. Otherwise stated, while some grounds for divorce may also be grounds for annulment, just because one might have grounds for divorce does not mean one also has grounds for annulment. 

This, from AmJur2d, § 1 (Annulment of marriage, generally), makes several important points:  

By definition, an annulment is a declaration that a purported marriage never existed. It is a judicial determination to set aside a marriage that was invalid at its inception because of some defect existing at the time of the marriage.  

***** 

A marriage should not be set aside lightly, and annulments of marriage are disfavored in the law. 

***** 

An annulment is also to be distinguished from a divorce in that as a general rule an annulment proceeding is for causes for avoidance of the marriage existing at the time of the marriage, whereas a divorce ordinarily is for causes arising after the marriage. 

In Utah, where I practice divorce and family law, this is the statute that governs an action for an annulment of a marriage: 

Utah Code § 30-1-17.1.  Annulment — Grounds for. 

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

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

(2) Upon grounds existing at common law. 

First, we will cover common-law grounds for annulment. The Utah Code does not identify what the common law grounds for annulment are. It is hard to find a “master list” of common law grounds for annulment, but here’s what I was able to find generally: 

  • Failure to consummate marriage; refusal of sexual intercourse 
  • Incapacity based on age (under age of consent) 
  • Lack of intent to enter into binding marriage 
  • Marriage induced by fraud 
  • Prior subsisting marriage 

Next, we will cover the statutory grounds for annulment (Utah Code § 30-1-17.1. Annulment—Grounds for). What kinds of purported marriages are prohibited or void? 

Incestuous marriages (Utah Code Section 30-1-1) 

  • When there is a spouse living, from whom the individual marrying has not been divorced; 
  • When an applicant is under 18 years old, unless the applicant: 
    • is 16 or 17 years old and obtains consent from a parent or guardian and juvenile court authorization in accordance with Section 30-1-9; or 
    • lawfully marries before May 14, 2019. 

And there is this statute that deals with one aspect of annulment: 

Utah Code § 30-1-17.  Action to determine validity of marriage — Judgment of validity or annulment. 

When there is doubt as to the validity of a marriage, either party may, in a court of equity in a county where either party is domiciled, demand avoidance or affirmance of the marriage, but when one of the parties was under 18 years old at the time of the marriage, the other party, being of proper age, does not have a proceeding for that cause against the party under 18 years old. The judgment in the action shall either declare the marriage valid or annulled and shall be conclusive upon all persons concerned with the marriage. 

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

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Duffin v. Duffin – 2022 UT App 60

2022 UT App 60

THE UTAH COURT OF APPEALS

JAMES M. DUFFIN III,
Appellee and Cross-appellant,
v.
BRANDY E. DUFFIN,
Appellant and Cross-appellee.

Opinion

No. 20200361-CA

Filed May 12, 2022

Third District Court, West Jordan Department

The Honorable Matthew Bates

No. 184400962

T. Jake Hinkins and Kurt W. Laird, Attorneys for Appellant and Cross-appellee

Martin N. Olsen and Beau J. Olsen, Attorneys for Appellee and Cross-appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1        In prototypical fashion, a young married couple—James and Brandy Duffin[1]—set about building a new house. They prequalified for a loan, hired a real estate agent, paid a deposit of $1,000 with marital funds, entered into a contract with a builder, went to a design center to pick out finishes, and attended the closing together. However, in atypical fashion, James’s father and grandfather reimbursed the $1,000 deposit, paid an additional $18,000 as a preconstruction deposit, and at closing paid the balance of the purchase price of $410,875 in cash. Only James’s name was placed on the deed. Months later, as James and Brandy’s marriage relationship deteriorated, James deeded the property to himself and his father. A divorce action was filed, and at trial, the district court concluded, among other things, that any interest James and Brandy had in the house was not marital property and that Brandy should be awarded attorney fees. Brandy appeals, claiming that any interest she and James have in the house is a marital interest. James cross-appeals, challenging the determination on fees. We reverse the district court’s determination regarding the house, but we affirm the decision regarding attorney fees.

BACKGROUND

¶2        Brandy and James were married in March 2015. They had two children during their union.

¶3        In April 2016, Brandy and James, having been approved for a loan of up to $360,000, entered into a real estate purchase agreement to purchase a house in West Jordan, Utah. Using a cashier’s check from an account in his name, James paid a security deposit of $1,000 on the contract.[2] James testified that his father (Father) reimbursed him for the $1,000, though he could not remember how that reimbursement occurred.

¶4        In June 2016, James’s grandfather (Grandfather) paid $18,000 for the preconstruction deposit, but James asserted that the money was actually an advance on Father’s inheritance from Grandfather. At closing, Father paid the outstanding balance on the home, again with money allegedly received as an advance on his own inheritance.

¶5        On February 8, 2017—the day before closing—James sent an email, titled “Loan Contract,” to Father stating that Father “is dispensing a loan of $429,875.42 to purchase a home,” which was identified as the house for which James and Brandy had signed the real estate purchase agreement. In that document, James identified himself as the party responsible for repayment of the loan. Notably, the Loan Contract did not mention interest or a payment schedule; rather, it provided that Father could “demand payment of this loan at anytime.”

¶6        Brandy and James moved into the completed house. A warranty deed conveying title of the house from the seller to James—Brandy’s name does not appear on the deed—was recorded on February 9, 2017.

¶7        About a year later, in February 2018, James added Father to the title of the house by executing and recording a new warranty deed. Brandy contended that the “marriage was struggling and divorce was a very real possibility” at the time James added Father to the title of the property.

¶8        As it turns out, Brandy and James separated in July 2018, and James petitioned for divorce in August 2018. James further asked that the assets and liabilities of the marital estate be divided equitably and that the parties bear their own attorney fees and costs.

¶9        As relevant here, in his financial declaration, submitted in October 2018, James listed the house as an asset with no amount owing, noting that it was a “[c]ash purchase” by Father and that it was acquired in his and Father’s names.

¶10      In her counter-petition, in addition to addressing custody and parent-time issues, Brandy requested that the house be sold and the equity split equally. Brandy also asked for attorney fees.

¶11 James later asserted—during the divorce proceedings— that he purchased the house on behalf of Father, who lived in California, and that he was just doing the “leg work” for Father. He also asserted that he and Brandy “weren’t prequalified on [their] own merits” but had used Father’s bank statements in the application.[3] However, James admitted that he never informed anyone that he was acting as the agent of Father. And James conceded that he was not aware of “written documentary evidence” indicating an agency relationship but that there were “certainly conversations” between him and Father to that effect.[4] James also contended that an agreement between him and Father gave James the option to purchase the house from Father.

¶12 Father echoed much the same in his deposition on the matter, saying that he had “been talking to [James] about purchasing a home for [him] in Utah for quite some time” and that James acted on his behalf in purchasing the house. Father explicitly stated that he “[a]bsolutely” never intended the house to be a gift to James. Father clarified, “I provided all the money. My son worked as my agent in obtaining that house. And it was always understood between my son and me that that was my house.” But Father admitted that there was no document that would evidence any sort of an agency relationship between them.

¶13      Father explained that his name was not on the deed to the house because he “wanted to empower” James by having him “go through the process” of purchasing a house. Father asserted that he was involved in the design of the house and “oversaw the whole thing.” But he admitted there were “no writings, no emails or text messages between the two of [them] about the house plans.” Rather, Father explained, “[I]t was just a . . . casual, loving, walking down the street, arm around my son,” asking, “What do you think, Jim?”

¶14 Father indicated that he needed to “subsidize the relationship [between James and Brandy] until it really got off . . . on a good start.” However, Father indicated that Brandy was never involved in the conversations about the help he was extending to them: “The whole . . . financial situation, . . . my support, my allowing them to live in that house, all of that was between me and my son.”

¶15 For her part, Brandy testified that there was never any discussion that the house would belong to anyone other than her and James. Specifically, she said there was never any mention made to her that the house was being built for Father or that Father had any input on the construction. She clarified that she and James “picked out all of the finishings” and the floor plan of the house. Brandy testified that at no time during construction did James ever indicate that he needed to check with Father to verify that he was “okay” with their design selections because it was going to be Father’s house. In terms of paying for the house, Brandy stated that she and James were prequalified for a loan on the house, that the $1,000 deposit was paid with a cashier’s check funded with money from their commingled accounts, and that she and James were present together at the closing. Brandy further testified that she and James completed the landscaping and added, among other features, a fence, basketball standard, and cement pad.

¶16      With regard to the house, the court found that it was not marital property. The court reasoned,

The parties went into this home with the expectation that they would purchase it together. They picked the lot, they picked the design of the home, they selected trim and other finishings in the home, and they entered into a [real estate purchase agreement] with [the seller], and the parties expected that they would have a mortgage and that they would pay for this home using their respective incomes. But when it came time to actually close on this transaction, that is not what happened. Instead, [Father] paid for the home in its entirety, and James was the only one who was put on the deed.

¶17      The court went on to note that James and Brandy “lived in the home for what is a relatively short duration. They did not pay rent, they did not pay any sort of mortgage or loan, they did not pay utilities or property taxes. Those were all paid by income from [Father] towards the home.” And even though James and Brandy did “contribute somewhat to the home by putting in some shrubberies, a basketball standard, putting down a concrete pad, [and] installing a small fence,” the court concluded that “given the large amount of equity in this home, upwards of $450,000, those small contributions . . . [did] not convert [the house] into a marital asset.”

¶18      The court concluded,

[The house] was an asset that was titled only in James’s name. It was paid for by [Father]. . . . To determine that it was a marital interest would essentially be to give to Brandy a tremendous windfall of something that was not acquired in any rational sense of the word by the efforts of the marriage or the work or efforts of the marriage. So to the extent that there is any interest in the home, it is not a marital interest and to the extent that James has an interest in the home, it is not a marital interest.[5]

¶19      Lastly, the court awarded attorney fees to Brandy, at least in part:

Given the parties’ respective incomes, particularly that James has income a little bit more than four times the income that Brandy has, Brandy has a need for assistance in paying her attorney’s fees [and] those fees were necessary for her to be able to defend herself in this divorce action. However, she did not prevail 100 percent on all of her claims[6] and everything she was seeking, so the Court hereby awards her 60 percent of her attorney’s fees.

¶20 Both parties appeal, Brandy with respect to the determination that any interest she and James had in the house was not marital property, and James with respect to the award of attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶21      Brandy contends that the district court erred in concluding that any interest she and James had in the house acquired during the course of the marriage was not marital property and thus not subject to distribution. “We will not disturb a property award unless we determine that there has been a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.” Nakkina v. Mahanthi, 2021 UT App 111, ¶ 16, 496 P.3d 1173 (cleaned up).

¶22      In his cross-appeal, James contends that the district court erred in ordering him to pay 60% of Brandy’s attorney fees pursuant to Utah Code section 30-3-3(1). “We review the district court’s award of attorney fees under Utah Code section 30-3-3, including the amount of the award, for abuse of discretion.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 6, 449 P.3d 202.

ANALYSIS

I. The Status of the Parties’ Putative Interest in the House as Marital Property

¶23 “Marital property is ordinarily all property acquired during marriage and it encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 14, 440 P.3d 757 (cleaned up). “Separate property, in contrast, is typically a spouse’s premarital property or property received by gift or inheritance during the marriage.” DeAvila v. DeAvila, 2017 UT App 146, ¶ 15, 402 P.3d 184.

¶24 “In Utah, marital property is ordinarily divided equally between the divorcing spouses and separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.” Olsen v. Olsen, 2007 UT App 296, ¶ 23, 169 P.3d 765. Specifically,

When dividing property in a divorce, the court should first properly categorize the parties’ property as part of the marital estate or as the separate property of one or the other. Then, the court should presume that each party is entitled to all of that party’s separate property and one-half of the marital property, regardless of which spouse’s name appears on the title to the marital property.

Allen v. Ciokewicz, 2012 UT App 162, ¶ 46, 280 P.3d 425 (cleaned up); see also Bradford v. Bradford, 1999 UT App 373, ¶ 26, 993 P.2d 887 (stating that marital property may be distributed equitably “regardless of who holds title”).

¶25 Here, the district court erred in its determination that insofar as James or Brandy had a property interest in the house, that interest was not marital.

¶26 Throughout the pendency of the divorce proceedings, James explicitly rejected the notion that the house was a gift. And there is no indication in the record that James received the house as part of his inheritance. Nor was the house James’s premarital asset—it was indisputably acquired during the marriage. Thus, there is no evidence to suggest that any interest James might have in the house qualifies as James’s separate property. See Keiter v. Keiter, 2010 UT App 169, ¶ 22, 235 P.3d 782 (“Generally, premarital property, gifts, and inheritances may be viewed as separate property, and the spouse bringing such separate property into the marriage may retain it following the marriage.” (cleaned up)).

¶27 But there is ample evidence that any interest James and Brandy had in the house was marital property. Brandy and James both signed the real estate purchase agreement. As the district court explicitly noted, they both entered into the agreement with the expectation that they were purchasing the house together and that they would have a mortgage together. They picked the lot, they paid a $1,000 deposit, they selected the design, and they chose the finishings. The two factors that the district court pointed to as indicating that the house was not marital property were that James was the only one on the deed and that Father paid for the house in its entirety. But neither of these circumstances is sufficient to transform whatever interest James and Brandy have in the house from marital property to separate property.

¶28      First, that Brandy was never on the deed to the house in no way indicates that any interest James and Brandy might have in the house was somehow not marital property. In fact, just the opposite is true. “[A] marital asset is defined functionally as any right that has accrued during the marriage to a present or future benefit.” Jefferies v. Jefferies, 895 P.2d 835, 837 (Utah Ct. App. 1995). By having his name entered into the warranty deed and having his name placed on the title, James obtained the house in fee simple. See Utah Code Ann. § 57-1-12(2) (LexisNexis 2020). And because he obtained title during the marriage—and because the house was not a gift or inherited—whatever interest he had in the house became marital property. See Marroquin, 2019 UT App 38, ¶ 14 (defining marital property as “all property acquired during marriage” (cleaned up)). In other words, once James acquired title, Brandy acquired title because the acquisition took place during the marriage, and there was no exception (i.e., gift or inheritance) indicating otherwise.

¶29      Second, that Father paid for the house also fails to render “nonmarital” any interest James and Brandy might have in it. As our case law makes abundantly clear, “marital property ordinarily includes all property acquired during marriage, whenever obtained and from whatever source derived.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 31, 392 P.3d 968 (cleaned up); accord Marroquin, 2019 UT App 38, ¶ 14; DeAvila, 2017 UT App 146, ¶ 15; Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct. App. 1990). That James and Brandy used someone else’s money to purchase the house does not—standing alone—make their interest in the house nonmarital property. Most people, when they purchase a home, use someone else’s money (usually a lender’s) to do it—indeed, Father providing the money to purchase the house looks somewhat like just such a loan. And granted, the source of money by which the house was acquired would potentially render James’s interest in the house nonmarital if Father had gifted the money to James alone or if it represented James’s inheritance. But that’s not what happened here. As already noted, the record does not support a conclusion that the money was a gift to James or part of his inheritance, and the district court did not conclude otherwise.

¶30 On this note (i.e., that Father paid for the house while James and Brandy made a minimal contribution), the district court, citing Jefferies v. Jefferies, 895 P.2d 835 (Utah Ct. App. 1995), and Dunn v. Dunn, 802 P.2d 1314 (Utah Ct. App. 1990), concluded, “These cases suggest that marital property is not just any property obtained, but property that is obtained through the efforts of the marriage, and suggests that a windfall to one party or the other may not necessarily be marital property.” From this “suggestion” that it perceived in these two cases, the district court concluded that James and Brandy did not contribute sufficiently to the house to make any interest they might have in it marital property.

¶31 But obtaining property “through the efforts of the marriage” is not the defining condition that makes property marital; rather, it is the mere acquisition of property during marriage. As this court has often repeated, “marital property ordinarily includes all property acquired during marriage, whenever obtained and from whatever source derived.” Lindsey, 2017 UT App 38, ¶ 31 (cleaned up). Our case law nowhere mentions “the efforts of the marriage” as being necessary to making property so acquired marital. Thus, acquisition—from whatever source—during the marriage is the hallmark condition that renders property marital, not the maintenance or growth of that property by the efforts of the parties. To be clear, our case law employs the modifier “ordinarily” to account for the situation where property acquired by “gift or inheritance during the marriage,” see DeAvila, 2017 UT App 146, ¶ 15, remains separate property unless it has been transformed to marital property by commingling or the contribution of the non-receiving spouse, see Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (stating that “separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse” unless it loses “its separate character . . . through commingling or if the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property” (cleaned up)). Thus, the district court’s misstep here was in applying the concept of “the efforts of the marriage” as a condition for all property acquired during the course of a marriage to become marital, when our case law has limited that concept to the efforts of the non-receiving spouse in transforming separate property into marital property.

¶32      In sum, we reverse the district court’s determination that the couple’s property interest in the house, insofar as they had an interest, was not marital. The extent to which Brandy and James even have an interest in the property is an issue that will be decided in the separate lawsuit. See supra note 5. But to the extent they are adjudicated to have an interest in the house, that interest is marital property subject to equitable distribution between them.

II. The Award of Attorney Fees

¶33 On appeal, James asserts that the district court erred in awarding Brandy attorney fees because it did not make a detailed factual analysis of either Brandy’s financial need for assistance or James’s ability to pay and because the district court took into account whether Brandy prevailed on her claims. These challenges raise different legal theories from the ones James raised below with regard to Brandy’s attorney fees request.

¶34 “Parties are required to raise and argue an issue in the [district] court in such a way that the court has an opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (cleaned up). “When a party fails to raise and argue an issue in the district court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698 (cleaned up). “As to preservation, our case law draws a distinction between new ‘issues’ (like distinct claims or legal theories) and new ‘arguments’ in support of preserved issues (such as the citation of new legal authority).” Hand v. State, 2020 UT 8, ¶ 6, 459 P.3d 1014.

¶35 Here, James is clearly trying to raise new issues. Below, James did not challenge the court’s analysis regarding Brandy’s financial need or his ability to pay. In fact, James explicitly challenged only the inclusion of fees associated with a protective order, the exclusion of certain reimbursements Brandy had received, the court’s handling of rule 54(d) of the Utah Rules of Civil Procedure as it applies to costs, and the exclusion of the costs James had paid for a custody evaluation. Nowhere did he assert that the court should not award Brandy attorney fees due to his or Brandy’s financial situation. In short, the legal theories he raised below in challenging Brandy’s attorney fee request were entirely different from the legal theories he attempts to raise now. He simply never gave the district court an opportunity to rule on the theories he now advances.

¶36 Because James failed to raise the same challenges to Brandy’s request for attorney fees that he is attempting to raise on appeal, his current challenges are unpreserved, and James does not ask us to apply any of the traditional exceptions to our preservation requirement.[7] On that basis, we decline to review the merits of James’s unpreserved challenges to the award of attorney fees.

CONCLUSION

¶37 Having concluded that to the extent the couple had a property interest in the house, the interest was marital, we reverse and remand for further proceedings consistent with this opinion. And we uphold the award of attorney fees to Brandy because the legal theories advanced on appeal were not preserved.


[1] Because the parties share the same last name, we refer to them by their given names.

[2] Brandy asserted that the cashier’s check was funded with commingled monies from her and James. See infra ¶ 15. James admitted that money from Brandy’s income may have gone into the account from which the cashier’s check was drawn.

[3] James’s name is identical to Father’s, with the exception of the suffix.

[4] James acted as agent for Father for the purchase of a different “property six houses away.” Indeed, the record contains another real estate purchase contract under Father’s name and address (as opposed to James and Brandy’s) that was signed by James. The record contains at least one piece of correspondence addressed to Father at this address.

[5] The court spoke in conditional terms about the extent of interest in the house—as do we—because Father has filed a pending quiet title action asserting his interest in the property.

 

[6] Brandy prevailed on various claims related to custody and child support.

[7] James argues that the court plainly erred in awarding attorney fees. But after his brief was submitted, this court held “that plain error review is not available in ordinary civil cases.” See Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357. Accordingly, the plain error exception to our preservation rule does not apply to this situation.

James also argues that “rare procedural anomalies . . . prevented [him] from fully providing the [district court] the legal arguments and evidence to support the denial of Brandy’s request for attorney fees.” The “rare procedural anomaly” James identifies is the court’s statement that it was “very familiar with the state of the law with respect to attorneys fees under 30-3-3” such that it did not need “further briefing on this matter.” James argues that precluding him “from putting forth evidence and appropriate briefing rises to the level of an anomaly in the proceedings.” But we see no procedural anomaly that would have prevented James from raising the issue in a post-judgment motion, just as he did with his other challenges to the award of attorney fees.

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

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How easy is it to change your child’s last name?

I cannot answer this question as it applies in all jurisdictions, but I can answer the question as it applies in the jurisdiction where I practice divorce and family law (Utah): 

Here are the applicable Utah Code sections: 

42-1-1. By petition to district court — Contents. 

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth: 

(1) The cause for which the change of name is sought. 

(2) The name proposed. 

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 

42-1-2. Notice of hearing — Order of change. 

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same. 

42-1-3. Effect of proceedings. 

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever. 

That seems fairly easy, right? I agree, it does seem easy (it deceptively seems easy), and if all you needed to do was go by what the Utah Code says is required of you to get a name change, you’d be right. But for reasons I do not understand, there are many “unwritten rules” governing a name change in Utah, whether for an adult or a minor child. Otherwise stated, if all you did was: 

  • file a petition in the court stating: 
    • the cause for which the change of name is sought; 
    • the name proposed; 
    • that you or your minor child have/has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 
  • schedule the hearing on the petition; 
    • prove three allegations that you were required to make in the petition; 
    • prove that there exists “proper cause” (whatever that means) for granting the petition for change of name;

that should be all you need to do, according to the Utah Code. But if that is all you did, there is a good chance your petition would be denied. So what are the “unwritten rules” you need to abide by to get a name change for yourself or your minor child? A good place to find out is here: 

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

https://www.quora.com/How-easy-is-it-to-change-your-child-s-last-name/answer/Eric-Johnson-311  

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Can I force my spouse to divorce me?

I know of no legal way to force your spouse to filed for divorce against you, but you may not be aware of the fact that your spouse cannot prevent you from divorcing him/her. 

Many people do not understand what no-fault divorce means. Some people mistakenly believe that no-fault divorce means, “My spouse cannot divorce me unless I am somehow at fault.” This is not true. 

No fault divorce means that one can divorce his/her spouse regardless of whether his/her spouse has committed any marital fault. 

What is marital fault, you may ask? each jurisdiction is a little different than another, but here is a basic list of what constitutes marital fault: 

  • Adultery 
  • Abandonment or desertion 
  • Bigamy 
  • Criminal conviction 
  • Cruelty 
  • Criminal conviction and/or imprisonment 
  • Culture, religion, and disease 
  • Financial backing 
  • Force or fraud in obtaining the marriage 
  • Impotence at time of marriage 
  • Insanity/Mental illness/Mental incapacity 
  • Marriage between close relatives 
  • Mental or physical abuse 
  • Willful neglect of spouse 
  • Refusing to engage in sexual intercourse with spouse 
  • Religious differences 
  • Sexual orientation 
  • Separation for an extended period of time 
  • Substance abuse 

Just because no-fault divorce exists does not mean you cannot still file for divorce on a marital fault-based ground or several fault-based grounds. 

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

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Noel v. James – 2022 UT App 33 – civil stalking injunction

Noel v. James – 2022 UT App 33

THE UTAH COURT OF APPEALS

MICHAEL EARL NOEL,

Appellee,

v.

WILLIAM THOMAS JAMES,

Appellant.

Opinion

No. 20200565-CA

Filed March 10, 2022

Sixth District Court, Kanab Department

The Honorable Marvin D. Bagley

No. 190600053

William Thomas James, Appellant Pro Se

Frank D. Mylar, Attorney for Appellee

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

HAGEN, Judge:

¶1        To obtain a civil stalking injunction, a petitioner must establish by a preponderance of the evidence that the alleged stalker’s “course of conduct . . . would cause a reasonable person: (a) to fear for the person’s own safety or the safety of a third person; or (b) to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2021); see id. §§ 78B­7-102(21), -701(1), -701(5). In this case, the district court granted a stalking injunction against Appellant William James, but it made no finding as to whether James’s course of conduct would have caused a reasonable person in Appellee Michael Noel’s position to fear for his safety or suffer emotional distress. Because the basis for the injunction is not apparent in the record, we vacate the injunction and remand for additional proceedings consistent with this opinion.

BACKGROUND[1]

¶2        Noel sought a stalking injunction after he and James were kicked out of a Kanab City Council meeting. Noel is an experienced public official who previously served as a state legislator for sixteen years and now serves as the executive director of the Kane County Water Conservancy District. James is a member of a local conservancy group. Both had attended the meeting to give public comment on a controversial permitting issue.

¶3        Noel “got up and got in line” once the comment period opened. James then “got up from the corner” and joined Noel in line. As Noel later testified, “[James] came right at me in kind of a burly manner . . . requiring me to move over for him to get by in an intimidating way. . . . I’m not saying I was fearful, but he came at me and forced me” to move aside. “If I wouldn’t have moved, he would have banged into me.”

¶4        While waiting in line, Noel decided he wanted to be the last person to address the council. Accordingly, he left his place in line and moved to the back. James, however, “wanted to prevent [Noel] from having the last word on [him]”—so he, too, gave up his spot and moved to the back of the line. Noel eventually gave up waiting in line altogether. But when he turned to leave, James stood in his way “to stop [Noel] from getting behind” him once again. And so Noel and James “jockeyed” for a few moments, with Noel unable to get past James and James unwilling to let Noel through. Noel testified, I wanted him to get out of the way, and he was blocking me, and it did anger me to do that. But I was also wondering if there was going to be a confrontation here. I was actually fearful that he might, you know, . . . take a shot at me.

¶5        Noel called James “a worthless piece of garbage.” James, in turn, shouted to the audience, relaying what Noel had just called him. At this point, law enforcement intervened and asked both men to leave the meeting. Noel went home, and James was arrested after he refused to comply. At the encouragement of the chief of police, Noel later petitioned for a civil stalking injunction against James.

¶6        The district court held a full-day evidentiary hearing on the petition. At the hearing, James sought to admit videos of both the city council meeting and a chamber of commerce meeting earlier that day through a witness who had attended both meetings. The videos had not been previously disclosed.

¶7        When the issue first arose, the court and counsel for both parties were under the impression that there were only two videos—one of the chamber of commerce meeting recorded by the witness herself and one of the city council meeting recorded by a videographer hired by the conservancy group. Noel stipulated to the admission of the first video, but he objected to the second video because the videographer was not present to lay foundation. Specifically, Noel’s counsel explained, “If there’s a woman here [who] says she videoed this on her camera, and it accurately depicts what she videoed on her camera, and she was there at the meeting, and she’s subject to cross-examination, and she made the video, I think that that’s proper. But the other one I don’t.”

¶8        But when the witness was called to testify, she explained that there were actually three videos: one video from each of the two meetings that she recorded with her personal cell phone, and a third video from the city council meeting recorded by the videographer. At that point, Noel’s counsel objected to the admission of all three videos because they had not been disclosed and he was “surprised” that they were being offered as evidence. James’s counsel did not dispute that the videos had not been disclosed in advance but claimed that, when the matter was discussed earlier, Noel “had stipulated to anything that [the witness] had personally recorded.” In response, Noel’s counsel argued that he had merely stipulated to the chamber of commerce video: “That’s all we were discussing at the time.” The court agreed with Noel’s counsel that the stipulation was limited to the chamber of commerce video. And because Noel “didn’t make the objection before about not having [the chamber of commerce video] in advance,” the court held him to that stipulation. The court received the chamber of commerce video into evidence per the stipulation, but excluded the other two based on the objection.

¶9        At the conclusion of the hearing, the district court determined that James had engaged in a course of conduct directed at Noel, as required under the civil stalking statute. The court found that the course of conduct consisted of two component acts, each committed at the city council meeting: (1) when James approached Noel “in a kind of burly manner,” and (2) when James “blocked [Noel] from going back to his seat.” The court did not make an express finding that James’s conduct would cause a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Nonetheless, the court granted the requested stalking injunction.

ISSUES AND STANDARDS OF REVIEW

¶10 James now appeals, contending that the district court erred in imposing a civil stalking injunction against him.[2] James primarily argues that his course of conduct would not have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Although the question of whether “a reasonable person would suffer fear or emotional distress” under the circumstances “is a question of fact that we review for clear error, we review the district court’s interpretation [and application] of the underlying legal standard for correctness.” Ragsdale v. Fishler, 2021 UT 29, ¶ 16, 491 P.3d 835; see also Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (“The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court’s legal conclusion.” (cleaned up)).

¶11 James also challenges the district court’s decision to exclude video evidence of the city council meeting. Specifically, he contends that the “videos met the [parties’] stipulation for new video evidence” and that, therefore, the district court erred by excluding them. “The scope of a stipulation presents a question of fact, which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (cleaned up).

ANALYSIS

I. Civil Stalking Injunction

¶12 To obtain a civil stalking injunction, the petitioner “must prove by a preponderance of the evidence that ‘an offense of stalking has occurred.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (quoting Utah Code Ann. § 77-3a-101(7) (LexisNexis 2017)).[3] “The crime of stalking consists of two elements. First, a person must ‘intentionally or knowingly engage in a course of conduct directed at a specific person.’” Id. (cleaned up) (quoting Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2017)). By statute, a “‘[c]ourse of conduct’ means two or more acts directed at or toward a specific person.” Utah Code Ann. § 76-5-106.5(1)(a) (LexisNexis Supp. 2021) (listing several examples of qualifying acts). Second, the respondent “must ‘know or should know that the course of conduct would cause a reasonable person’ to ‘fear for the person’s own safety’ or ‘suffer other emotional distress.’” Ragsdale, 2021 UT 29, ¶ 25 (quoting Utah Code Ann. § 76-5­106.5(2)). A “reasonable person” is statutorily defined as “a reasonable person in the victim’s circumstances.” § 76-5­106.5(1)(d).

¶13      Although the district court recited both elements, it made findings on the first element only. It identified an intentional course of conduct consisting of two acts: approaching Noel in a “burly manner” and later blocking Noel from returning to his seat. But the court did not make a factual finding on the second element, that is, whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. “When confronted with questions of fact, this court will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” See Baird v. Baird, 2014 UT 08, ¶ 29, 322 P.3d 728 (cleaned up). Otherwise, “remand is appropriate” to allow the district court to make that determination. See id.

¶14      Noel acknowledges that the district court never addressed the second element on the record, but he argues that James failed to preserve the issue for appeal. We disagree. To issue a stalking injunction, “the district court necessarily had to consider whether [Noel] had established each element of a stalking offense.” See id. ¶ 20. Thus, the court had an opportunity to rule on whether the statutory elements were met, and that issue is “adequately preserved” for appeal. See id. In any event, James specifically argued to the court that “[t]his [was] not a situation where a reasonable person . . . in [Noel’s] position” would have been “afraid of physical harm or . . . in emotional distress.” And he moved “essentially for a directed verdict” on that basis. Therefore, we are confident that James presented this issue “to the district court in such a way that the court ha[d] an opportunity to rule on it.” See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up).

¶15      Alternatively, Noel contends that we can affirm on appeal because the district court “had evidence to determine that James acted in a threatening manner that would have made a reasonable person fearful or suffer some emotional distress over the two encounters.” When the district court does “not explicitly make a necessary finding,” we may still affirm “if the evidence and statements contained in the record make the evidentiary basis for this finding sufficiently clear.” See Sheeran v. Thomas, 2014 UT App 285, ¶ 8, 340 P.3d 79 (cleaned up); see also State v. Bingham, 2015 UT App 103, ¶¶ 28–29, 348 P.3d 730 (explaining that a reviewing court may “assume that the [district] court found the facts in accord with its decision,” unless “the ambiguity of the facts makes this assumption unreasonable” (cleaned up)). But here, the evidentiary basis for finding that Noel satisfied the second element is not sufficiently clear from this record.

¶16 To determine whether the petitioner has met the second element required for a civil stalking injunction, we apply “an individualized objective standard.” Baird, 2014 UT 08, ¶ 26. Under this standard, the “subjective effect of the respondent’s conduct on the petitioner is irrelevant.” Ragsdale, 2021 UT 29, ¶ 45. Instead, the relevant question is whether the conduct would have caused fear or emotional distress to “a reasonable person in the petitioner’s circumstances.” Id. (quoting Baird, 2014 UT 08, ¶ 25). “In applying this standard, courts must consider the entire context surrounding a respondent’s conduct” and “must consider the conduct cumulatively, accounting for the facts and circumstances of the individual case.” Id. (cleaned up).

¶17      Our supreme court has suggested a non-exhaustive list of factors that may be relevant to this assessment. Those factors include “the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking and its proximity to the victim’s children, if any, and the cumulative effect of defendant’s repetitive conduct.” Baird, 2014 UT 08, ¶ 27 (cleaned up). “Furthermore, under an individualized objective standard, a court may consider whether the defendant had knowledge of a particular vulnerability of the victim and then acted with full knowledge of the victim’s vulnerability.” Id. (cleaned up).

¶18 Under this standard, it is far from obvious that a reasonable person in Noel’s circumstances would have feared for his safety or suffered emotional distress, given the context in which James’s conduct took place. See Utah Code Ann. § 76-5-106.5(2)(a)–(b) (LexisNexis Supp. 2021). The encounter occurred in a public place—a city council meeting—and in full view of a room packed with witnesses. Law enforcement officers were stationed at the meeting and ready to intervene. And Noel is an experienced public official accustomed to dealing with members of the public. See Baird, 2014 UT 08, ¶ 27 (indicating that the individualized objective standard considers “the victim’s background”). Although Noel testified that James was “a loose cannon” and “a different guy than [Noel had] dealt with in [his] years of public service,” the district court made no finding that a reasonable person in Noel’s circumstances would have found James particularly threatening. And even though James was ultimately arrested, his arrest was based not on his conduct toward Noel, but on his refusal to comply when law enforcement ordered both men to leave the meeting.

¶19 Noel argues that a reasonable person would fear for his safety under these circumstances. He suggests that the district court’s finding that James approached in a burly manner “could mean that James was acting tough or flexing his muscles or puffing his chest in a manner that would suggest physical aggression.” Perhaps it could, but we have no findings to that effect. Nor do we have a finding that such a display would cause a reasonable person to fear for his safety in the context in which it occurred—a well-attended, public meeting, with law enforcement officers standing by.

¶20 Noel also argues that the evidence supported a finding that James’s conduct would have caused “some emotional distress,” but that is not the standard. The stalking statute defines “emotional distress” as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” See Utah Code Ann. § 76-5-106.5(1)(b) (emphasis added). Noel has pointed to no evidence in the record that would have clearly supported a finding that James knew or should have known that his course of conduct would cause a reasonable person in Noel’s circumstances to suffer “emotional distress,” as defined by statute.

¶21      If the district court applied the correct legal standard and implicitly found the second element satisfied, the evidentiary basis for that ruling is not clear on this record. Although the interaction that occurred at the city council meeting was certainly uncivil, it is not the type of conduct that would ordinarily cause a reasonable person to fear for his physical safety or experience “significant mental or psychological suffering”—at least not without other contextual facts not apparent from the record. See id.

¶22 Having heard the evidence firsthand, the district court is in an advantaged position to make factual findings as to whether Noel has proved the second element by a preponderance of the evidence. We ordinarily rely on the district court to make those kinds of assessments, because it has “personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties.” Baird, 2014 UT 08, ¶ 30. “This is particularly true in a case like this one where the record consists almost entirely of evidence presented at an evidentiary hearing.” See id. Therefore, we vacate the injunction and remand for the district court to determine whether Noel has proved the second element under the legal standard explained in this opinion.

II. Scope of the Stipulation

¶23 Because we are remanding for further findings, we must also reach the question of whether the district court properly excluded video of the interaction between James and Noel at the city council meeting. James argues on appeal that the district court abused its discretion by excluding both videos of the city council meeting, because Noel had stipulated to the admission of late-disclosed videos so long as James laid sufficient foundation by calling the person who recorded each one.

¶24 But in excluding the videos of the city council meeting, the district court found that the parties’ stipulation was limited to the chamber of commerce video. James’s counsel asserted that Noel “had stipulated to anything that [the witness] had personally recorded,” but Noel’s counsel pointed out that, at the time of the stipulation, he was unaware of the existence of the third video and that the only thing counsel had discussed was the chamber of commerce video. The court agreed with Noel’s counsel, saying, “That’s the way I understood the stipulation.”

¶25 The district court’s finding that the stipulation was limited to the chamber of commerce video was not clearly erroneous. At the time of the stipulation, the parties were discussing only two videos. Noel stipulated to the admission of the chamber of commerce video taken by the witness and objected to the admission of the city council video taken by the videographer based on lack of foundation. His stipulation to the chamber of commerce video cannot fairly be read as a stipulation to a third video that he did not know existed.

¶26 James has not argued that the videos were timely disclosed, that the disclosure violation could be excused for good cause, or that the failure to disclose was harmless. See Utah R. Civ. P. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”). Therefore, he has not established any basis on which to reverse the district court’s exclusion of the city council videos.

CONCLUSION

¶27 James has not established that the district court erred in excluding the late-disclosed videos of the city council meeting, but he has established that the injunction was entered without the necessary findings. Specifically, the district court made no express finding as to whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Because the record does not provide a clear evidentiary basis for the court’s decision, we vacate the stalking injunction against James and remand for additional proceedings consistent with this opinion.


[1] “On appeal, when a trial court has made findings of fact to support a civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Sheeran v. Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.

[2] James, a non-attorney, represents himself in this appeal. We hold him “to the same standard of knowledge and practice as any qualified member of the bar,” but accord him “every consideration that may reasonably be indulged.” See State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (cleaned up).

[3] Although the 2018 amendment of the civil stalking statute governs this case, we cite the most recent version of the civil stalking statute for convenience—unless a prior version is quoted by a different source. Regardless of the version quoted throughout this opinion, the statutory language at issue is the same.


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

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Must I hand a cop my license, or just show it?

I get this question a lot, and frankly, I am curious to know the answer myself:  

 If you have a dedicated sleeve in your wallet that holds your driver license (you know, the kind with a window so that you can display your driver license without having to remove it from your wallet), must you remove your license from your wallet during a traffic stop or during questioning when a police officer or highway patrolman tells you you must? 

 I’ve always suspected that the answer is “no” and that if you show your license as it is in your wallet sleeve/window that’s acceptable.  

 Some states actually do have laws that require you to “surrender” your license to the officer/patrolman during a traffic stop, but here is what I could find for Utah (pay particular attention to subsection (1)(b)): 

§53-3-217. License to be carried when driving motor vehicle–Production in court–Violation

 (1)(a) The licensee shall have his license certificate in his immediate possession at all times when driving a motor vehicle. 

 (𝗯) 𝗔 𝗹𝗶𝗰𝗲𝗻𝘀𝗲𝗲 𝘀𝗵𝗮𝗹𝗹 𝗱𝗶𝘀𝗽𝗹𝗮𝘆 𝗵𝗶𝘀 𝗹𝗶𝗰𝗲𝗻𝘀𝗲 𝗰𝗲𝗿𝘁𝗶𝗳𝗶𝗰𝗮𝘁𝗲 𝘂𝗽𝗼𝗻 𝗱𝗲𝗺𝗮𝗻𝗱 𝗼𝗳 𝗮 𝗷𝘂𝘀𝘁𝗶𝗰𝗲 𝗼𝗳 𝗽𝗲𝗮𝗰𝗲, 𝗮 𝗽𝗲𝗮𝗰𝗲 𝗼𝗳𝗳𝗶𝗰𝗲𝗿, 𝗼𝗿 𝗮 𝗳𝗶𝗲𝗹𝗱 𝗱𝗲𝗽𝘂𝘁𝘆 𝗼𝗿 𝗶𝗻𝘀𝗽𝗲𝗰𝘁𝗼𝗿 𝗼𝗳 𝘁𝗵𝗲 𝗱𝗶𝘃𝗶𝘀𝗶𝗼𝗻. 

 (2) It is a defense to a charge under this section that the person charged produces in court a license certificate issued to him and valid at the time of his citation or arrest. 

 (3) A person who violates Subsection (1)(a) or (1)(b) is guilty of an infraction. 

 The way I read subsection (1)(b), “display” is clearly not a synonym for “surrender” or “give” or “take out of your wallet and hand it over to me”. If there are other statutes, ordinances, or regulations that apply in this situation, I do not know what they are. 

 I can’t see a basis for being obligated to hand an officer your license under the general “stopand question (and possibly search) statute: 

§77-7-15. Authority of peace officer to stop and question suspect–Grounds

A peace officer may stop any individual in a public place when the officer has a reasonable suspicion to believe the individual has committed or is in the act of committing or is attempting to commit a public offense and may demand the individual’s name, address, date of birth, and an explanation of the individual’s actions. 

Here’s the law requiring one to have his/her license and registration with him/her when operating a motor vehicle, but it doesn’t require you to hand these documents to the officer: 

41-12a-603.  Operating motor vehicle without license or registration. 

Any person whose license or registration or nonresident’s operating privilege has been suspended or revoked under this chapter and who, during the suspension or revocation drives any motor vehicle upon any highway or knowingly permits any motor vehicle owned by the person to be operated by another upon any highway, except as permitted under this chapter, is guilty of a class C misdemeanor. 

41-1a-214.  Registration card to be exhibited. 

(1)        For the convenience of a peace officer or any officer or employee of the division, the owner or operator of a vehicle is encouraged to carry the registration card in the vehicle for which the registration card was issued and display the registration card upon request. 

(2)        For a vehicle owned by a rental company, as defined in Section 31A-22-311, a person driving or in control of the vehicle may display the vehicle’s rental agreement, as defined in Section 31A-22-311, in place of a registration card. 

This statute provides that one must “exhibit” one’s driver license (“operator’s license”) to a peace officer, but does not require one to deliver it into the officer’s possession: 

41-6a-401.  Accident involving property damage — Duties of operator, occupant, and owner — Exchange of information — Notification of law enforcement — Penalties. 

(3)        Except as provided under Subsection (6), if the vehicle or other property is operated, occupied, or attended by any person or if the owner of the vehicle or property is present, the operator of the vehicle involved in the accident shall: 

(a)        give to the persons involved: 

(i)         the operator’s name, address, and the registration number of the vehicle being operated; and 

(ii)        the name of the insurance provider covering the vehicle being operated including the phone number of the agent or provider; and 

(b)        upon request and if available, exhibit the operator’s license to: 

(i)         any investigating peace officer present; 

(ii)        the operator, occupant of, or person attending the vehicle or other property damaged in the accident; and 

(iii)       the owner of property damaged in the accident, if present. 

And there is this, for drivers of commercial motor vehicles, but it too only provides that one must “display” the license to the officer:

§53-3-404. Requirements to drive commercial motor vehicle

(1) A person may not drive a commercial motor vehicle, unless the person has been issued and is in immediate possession of: 

(a) a CDL license certificate valid for the commercial motor vehicle the person is driving; or 

(b) a valid CDIP license certificate in accordance with Section 53-3-408. 

(2)(a) A licensee shall display a CDL or CDIP license certificate upon demand of a justice court judge, a peace officer, a special function officer, a port-of-entry officer, or a designee of the division. 

(b) It is a defense to a charge under this section that the person charged produces in court a CDL or CDIP license certificate that is issued to the person and valid at the time of the citation or arrest. 

(3) A person may not drive a commercial motor vehicle if the person’s privilege to drive a commercial motor vehicle is: 

(a) suspended, revoked, or canceled; 

(b) subject to a disqualification; 

(c) subject to an out-of-service order; or 

(d) not medically certified as defined in Section 53-3-402. 

(4) A person may not drive a commercial motor vehicle if the commercial motor vehicle is subject to an out-of-service order. 

This statute uses the word “display” only regarding registration and insurance documentation (this statute is lengthy, so I only share excerpts of it):

§41-12a-303.2. Evidence of owner’s or operator’s security to be carried when operating motor vehicle–Defense–Penalties

***** 

(2)(a)(i) A person operating a motor vehicle shall: 

(A) have in the person’s immediate possession evidence of owner’s or operator’s security for the motor vehicle the person is operating; and 

(B) display it upon demand of a peace officer. 

(ii) A person is exempt from the requirements of Subsection (2)(a)(i) if the person is operating: 

(A) a government-owned or leased motor vehicle; or 

(B) an employer-owned or leased motor vehicle and is driving it with the employer’s permission. 

(iii) A person operating a vehicle that is owned by a rental company, as defined in Section 31A-22-311, may comply with Subsection (2)(a)(i) by having in the person’s immediate possession, or displaying, the rental vehicle’s rental agreement, as defined in Section 31A-22-311. 

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More proposed family law-related proposed laws 2022 Utah

More proposed family law-related proposed laws from the 2022 Utah Legislative Session

Last week I covered four family law bills proposed during the 2022 session of the Utah State Legislature. Today’s post will review 3 more proposed bills.

First, SB 74, entitled “Alimony Modifications”. This bill, if passed into law, would define the term, “length of the marriage” which currently is not defined in the Utah Code. Under S.B. 74, “length of the marriage” would mean the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court. S.B. 74 would also amend provisions related to alimony and enact provisions regarding cohabitation by a spouse during the pendency of a divorce action; specifically, it would 1) provide that if a party is ordered to pay temporary alimony before entry of the divorce decree, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony; and 2) if a party establishes before entry of the divorce decree of divorce that a current spouse is cohabiting with another individual before entry of the divorce decree, the court may not order the party to pay alimony, including temporary alimony, to the current spouse.

Next, there is SB 85, entitled “Protective Order and Civil Stalking Injunction Expungement”. This bill seeks to define terms relating to the expungement of protective orders and stalking injunctions; makes statutory provisions for the expungement of protective orders and stalking injunctions retroactive; allows for the expungement of certain protective orders and stalking injunctions; provides the requirements for expunging certain protective orders and stalking injunctions; and addresses the distribution and effect of an order for expungement of certain protective orders and stalking injunctions.

SB 87, entitled “Court Fee Waiver Amendments,” would amend provisions regarding an affidavit of indigency; defines the term, “indigent”; allow court fees, costs, or security to be waived for indigent individuals; and require a court to find an individual indigent under certain circumstances.

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Should a parent prorate child support to include the child’s 18th birthday?

What would you think of a parent who makes the last child support payment prorated 7 days because the child’s 18th birthday falls on the 7th?

I see nothing illegal or immoral about the principle of child support ending the day the child legally emancipates. Child support is for minor children, and when a child emancipates, the child is no longer a minor. 

But check and see if the child support payor (also known as the child support “obligor”—the payee is the “obligee”) is allowed to prorate. The law in Utah (where I practice divorce and family law) is: 

Utah Code Section 78B-12-219. Adjustment when child becomes emancipated. 

(1) When a child becomes 18 years old or graduates from high schoolduring the child’s normal and expected year of graduation, whichever occurs later, or if the child dies, marries, becomes a member of the armed forces of the United States, or is emancipated in accordance with Title 80, Chapter 7, Emancipation, the base child support award is automatically adjusted to the base combined child support obligation for the remaining number of children due child support, shown in the table that was used to establish the most recent order, using the incomes of the parties as specified in that order or the worksheets, unless otherwise provided in the child support order. 

So I read § 78B-12-219(1) to mean that child support ends for a child at the very moment when the child becomes 18 years old or graduates from high school during the child’s normal and expected year of graduation, whichever occurs later, or if the child dies, marries, becomes a member of the armed forces of the United States, or is emancipated by court order. This would mean that child support payments could certainly be prorated only to cover the number of days in the month that a child is a minor or (if the normal and expected high school graduation date follows the child’s the child 8th birthday) the number of days in the month until the date of the child’s high school graduation, not the entire month. 

If the Utah legislature had intended for § 78B-12-219(1) to provide that child support ends at the end of the month the child becomes 18 years old or graduates from high school during the child’s normal and expected year of graduation, it could have done so, but it did not. That stated, if child support is collected by the state child support collection agency (in Utah that’s the Office of Recovery Services “ORS”), my guess is that ORS collects for the whole month and does not collect only the amount prorated up to the point that the child becomes 18 years old or graduates from high school during the child’s normal and expected year of graduation. I’m not even sure ORS would prorate if asked to prorate. 

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

https://www.quora.com/What-would-you-think-of-a-parent-who-makes-the-last-child-support-payment-prorated-7-days-because-the-child-s-18th-birthday-falls-on-the-7th/answer/Eric-Johnson-311  

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Christmas/Winter Break for Parents Under the Utah Code

Christmas/Winter Break for Parents Under Utah Code § 30-3-35 or (§ 30-3-35.5 for a child 18 months and older)

If your Christmas/Winter break starts December 17, 2021 and ends January 2, 2022 (i.e., school starts back up on Monday, January 3, 2022), then that means the period between December 17 and January 2 and 17 days (an odd number of days in the holiday break parent-time period). This is how the holiday would be divided:

§ 30-3-35(2)(f)(viii): the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.

The day halfway through the period between December 17 and January 2 would be 1:00 p.m. December 25.

Monday Tuesday Wednesday Thursday Friday Saturday Sunday
Dec. 17

(day 1)

Dec. 18

(day 2)

Dec. 19

(day 3)

Dec. 20

(day 4)

Dec. 21

(day 5)

Dec. 22

(day 6)

Dec. 23

(day 7)

Dec. 24

(day 8)

Dec. 25

(day 9)

Dec. 26

(day 10)

Dec. 27

(day 11)

Dec. 28

(day 12)

Dec. 29

(day 13)

Dec. 30

(day 14)

Dec. 31

(day 15)

Jan. 1

(day 16)

Jan. 2

(day 17)

 

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What are the divorce laws in Utah?

I don’t want to appear immodest, but honestly, my book is probably the best source in one volume: 

https://store.legal.thomsonreuters.com/law-products/Treatises/Utah-Family-Law-2020-2021-ed-Vol-2-Utah-Practice-Series/p/106664782 

You can also find the laws governing Utah divorce and family law at the Utah State Legislature’s website, particularly (but not exclusively) in these Chapters of the Utah Code: 

Utah Code, Title 30, Husband and Wife, Chapter 3. Divorce 

Utah Code, Title 78B, Judicial Code, Chapter 12, Utah Child Support Act, Part 2. Calculation and Adjustment 

And you can learn a lot about how divorce law works in Utah by reading divorce and child custody decisions of the Utah Supreme Court and Utah Court of Appeals. 

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

https://www.quora.com/What-are-the-divorce-laws-in-Utah/answer/Eric-Johnson-311?prompt_topic_bio=1  

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When a restraining order expires, is there some documentation that the respondent can get to prove the expiration?

In Utah, the answer to your question would be: Yes, in the form of the restraining order itself. The restraining order itself states that “[t]he order shall expire by its terms within such time after entry, not to exceed 14 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. (Utah Rules of Civil Procedure Rule 65A(b)(2)).

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What are the laws for joint custody?

For the jurisdiction where I practice divorce and family law (Utah), the laws the court must consider are found in Utah Code § 30-3-10, 30-3-10.2, and, if the question of joint equal custody is in issue, § 30-3-35.2. The list is long, but worth knowing (frankly, you must know about these factors and be able to argue them in your favor) if you anticipate a fight over child custody:

 

Utah Code Title 30, Husband and Wife, Chapter 3, Divorce, Section 10 (Custody of a child — Custody factors.)

30-3-10. Custody of a child — Custody factors.

(1) If a married couple having one or more minor children are separated, or the married couple’s marriage is declared void or dissolved, the court shall enter, and has continuing jurisdiction to modify, an order of custody and parent-time.

(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

(i) physical needs;

(ii) emotional needs;

(iii) educational needs;

(iv) medical needs; and

(v) any special needs;

(c) the parent’s capacity and willingness to function as a parent, including:

(i) parenting skills;

(ii) co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(iii) ability to provide personal care rather than surrogate care;

(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

(e) the emotional stability of the parent;

(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

(h) the parent’s reasons for having relinquished custody or parent-time in the past;

(i) duration and depth of desire for custody or parent-time;

(j) the parent’s religious compatibility with the child;

(k) the parent’s financial responsibility;

(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

(m) who has been the primary caretaker of the child;

(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

(o) the relative benefit of keeping siblings together;

(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

(r) any other factor the court finds relevant.

(3) There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases when there is:

(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse involving the child, a parent, or a household member of the parent;

(b) special physical or mental needs of a parent or child, making joint legal custody unreasonable;

(c) physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

(d) any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

(4)

(a) The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9.

(b) A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.

(5)

(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.

(b)

(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise.

(ii) The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

(c)

(i) If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera.

(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

(6)

(a) Except as provided in Subsection (6)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

(i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

(ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

(c) Nothing in this section may be construed to apply to adoption proceedings under Title 78B, Chapter 6, Part 1, Utah Adoption Act.

(7) This section does not establish a preference for either parent solely because of the gender of the parent.

(8) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

(9) When an issue before the court involves custodial responsibility in the event of a deployment of one or both parents who are servicemembers, and the servicemember has not yet been notified of deployment, the court shall resolve the issue based on the standards in Sections 78B-20-306 through 78B-20-309.

(10) In considering the past conduct and demonstrated moral standards of each party under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

(a) consider or treat a parent’s lawful possession or use of cannabis in a medicinal dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in accordance with Title 4, Chapter 41a, Cannabis Production Establishments, Title 26, Chapter 61a, Utah Medical Cannabis Act, or Subsection 58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession or use of any prescribed controlled substance; or

(b) discriminate against a parent because of the parent’s status as a:

(i) cannabis production establishment agent, as that term is defined in Section 4-41a-102;

(ii) medical cannabis pharmacy agent, as that term is defined in Section 26-61a-102;

(iii) medical cannabis courier agent, as that term is defined in Section 26-61a-102; or

(iv) medical cannabis cardholder in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act.

Utah Code Title 30, Husband and Wife, Chapter 3, Divorce, Section 10.2 (Joint custody order — Factors for court determination — Public assistance.)

30-3-10.2. Joint custody order — Factors for court determination — Public assistance.

(1) The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and the court determines that joint legal custody or joint physical custody or both is in the best interest of the child.

(2) In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and the following factors:

(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

(c) co-parenting skills, including:

(i) ability to appropriately communicate with the other parent;

(ii) ability to encourage the sharing of love and affection; and

(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(d) whether both parents participated in raising the child before the divorce;

(e) the geographical proximity of the homes of the parents;

(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

(h) the past and present ability of the parents to cooperate with each other and make decisions jointly; and

(i) any other factor the court finds relevant.

(3) The determination of the best interest of the child shall be by a preponderance of the evidence.

(4) The court shall inform both parties that an order for joint physical custody may preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment Support Act.

(5) The court may order that when possible the parties attempt to settle future disputes by a dispute resolution method before seeking enforcement or modification of the terms and conditions of the order of joint legal custody or joint physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.

Utah Code Title 30, Husband and Wife, Chapter 3, Divorce, Section 30-3-35.2. (Equal parent-time schedule).

Section 30–3–35.2 (Equal parent-time schedule)

(1)

(a) A court may order the equal parent-time schedule described in this section if the court determines that:

(i) the equal parent-time schedule is in the child’s best interest;

(ii) each parent has been actively involved in the child’s life; and

(iii) each parent can effectively facilitate the equal parent-time schedule.

(b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:

(i) each parent’s demonstrated responsibility in caring for the child;

(ii) each parent’s involvement in child care;

(iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

(iv) each parent’s assistance with the child’s homework;

(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

(vi) each parent’s bond with the child; and

(vii) any other factor the court considers relevant.

(c) To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

(ii) each parent’s ability to assist with the child’s after school care;

(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);

(iv) the flexibility of each parent’s employment or other schedule;

(v) each parent’s ability to provide appropriate playtime with the child;

(vi) each parent’s history and ability to implement a flexible schedule for the child;

(vii) physical facilities of each parent’s residence; and

(viii) any other factor the court considers relevant.

(2)

(a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.

(c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).

(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.

(e)

(i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3)

(a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i) one parent shall exercise parent-time starting Monday morning and ending Wednesday morning;

(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and

(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b) The child exchange shall take place:

(i) at the time the child’s school begins; or

(ii) if school is not in session, at 9 a.m.

(4)

(a) The parents may create a holiday schedule.

(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i) order the holiday schedule described in Section 30-3-35; and

(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5)

(a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b)

(i) One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period begins.

(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.

(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

 

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

 

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