Business Division

 

Brown v. Brown, 2020 UT App 146

Utah Court of Appeals

Attorneys: Julie J. Nelson, Troy L. Booher, Alexandra Mareschal, Ron W. Haycock, Jr., S. Spencer Brown, Scarlet R. Smith

District Court: The Honorable Derek P. Pullan

Summary: Jerry purchased and paid off a dental practice and building by 1996. The parties were married in 1996. The parties had several children from previous marriages and one child together. They decided Yvonne would stay home with the children. Yvonne occasionally filled in at the dental office on an emergency basis. Regardless of how much she worked, the dental office paid Yvonne a monthly salary. The dental practice had separate accounts from the joint personal accounts. Jerry paid personal joint bills from the business accounts. Jerry controlled the finances very carefully, keeping details from Yvonne. Jerry remodeled the building, causing a debt that was paid from the company, diminishing how much the family received from the company. He also had a failed second office, which also diminished how much the family received from the business. Jerry paid for Yvonne’s schooling from the dental practice’s revenue. Jerry spent $200,000 to help Yvonne open three new rooms at the dental office for her new spa business. During the parties’ separation, Jerry continued to pay significant amounts to Yvonne for her spa and for bills in the hopes that they could work out their relationship. As the separation went on, he diminished these payments to nothing until the court ordered him to pay temporary support.

Holding (Business Division): The district court found that the dental business had become marital property because Jerry used income from the business during the marriage to reinvest into the business. Separate property, along with the appreciation on that property is generally awarded to the party holding that property. However, separate property can become marital property in three circumstances: 1) when separate property has been commingled with marital property; 2) when the other spouse has augmented, maintained, or protected the separate property (contribution exception); and 3)  in extraordinary situations when equity so demands.” Here, the business was never comingled with the personal accounts. The district court errored in finding that the contribution exception applied in this case. The contribution exception may be satisfied in three ways: 1) when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value; 2) when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property; or 3) potentially, when one spouse works for a business owned by the other spouse but is not paid a wage or salary. The district court incorrectly found that the second option was true. But, although Jerry used money from the practice to pay family expenses, he never used money from family accounts to pay for the practice. It is true that he used money from the practice to expand the practice and that may have diminished the amount he could give ot the family. But, that does not mean that the family paid for those improvements. Instead, it was the practice paying for all improvements. There was a one-way flow of revenue from the practice to family accounts, never from family accounts to the practice. The practice never lost its separate character. This case is distinguished from Keiter, 2010 UT App 169 because in Keiter, the physician husband was leaving his salary in the busines accounts and then paying marital bills out of the business accounts. In Brown, the husband always paid himself a salary into the joint marital account. Further, although extra money from the business was used to pay marital bills, the marital account was never used to pay business bills.

Holding (Pre-decree Expenses): The district court awarded wife $96,409 from the property division to cover her pre-decree expenses. This was remanded. “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126. “For this reason, it is improper to allow one spouse access to marital funds to pay for reasonable and ordinary living expenses while the divorce is pending, while denying the other spouse the same access.” Id. “the marital estate must pay for the reasonable and ordinary living expenses of each party during the pendency of their divorce proceedings.” Id. Therefore, the district court properly found that because Jerry had taken control of the marital estate and made sure to cover his own expenses from it, but denied Yvonne the same benefit, the court would reapportion the estate to pay for her reasonable expenses. Further, the court need not give Jerry a credit for $220,000 that he put into Yvonne’s business years earlier, with the majority happening before the separation. That money was used to allow her to have an income and supplement what her shortfall was. The issue is remanded simply to recalculate how much is owed because of a simple error of adding one (1) month that both parties agreed was incorrect.

 

Adoption

In the matter of adoption of B.F.S., 2020 UT App 149

Utah Court of Appeals

Attorneys: Lonn Litchfield

District Court: The Honorable Matthew Bates

Summary: The appellate court reverses the denial and dismissal of Heart to Heart Adoptions, Inc.’s petition for a determination of rights and interests for the child and an order for temporary custody. The child was born in Michigan and was being placed for adoption in Minnesota. The district court held that Utah had not interest in the case.

Holding (Venue): U.C.A. § 78B-6-105 gives very specific rules about venue on adoption cases. However, that statute does not apply to the initial determination of determination of rights and custody that was filed before the adoption. Those rights are governed by U.C.A. § 78B-6-109 and the question of temporary custody by 78B-6-134. Neither of those provisions have venue distinctions, so the general catch all venue provisions of 78B-3-307(1) and (3), which allows a petition to file where they want if there is not a defendant, which there was not in this case.

Holding (Best Interest): The district court incorrectly found that it was not in the child’s best interest to litigate the case in Utah, where the child had seemingly no ties. This was reversed on the basis that the agency is based in Utah and Utah has an interest in governing that agency and the adoptions it is doing. Also, because the temporary custody was in Utah, there was another tie there.

 

Modification

Miller v. Miller, 2020 UT App 171

Utah Court of Appeals

Attorneys: Jonathan Hibshman, Marco Brown, Rodney R. Parker, Dustin D. Gibb

District Court: The Honorable Michael Edwards

Summary: The father appealed the district court’s dismissal of his petition to modify under Rule 12(b)(6) and for failure to engage in dispute resolution before bringing the petition. The appellate court reverses and remands. The decree gave the parties joint legal and physical custody with mother having primary custody. The decree had a detailed dispute resolution process that included a mediation requirement. Father’s modification was based on twelve (12) assertions of co-parenting issues.

Holding (Custody v. Parent Time Modifications): “The change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Erickson, 2018 UT App 184, ¶ 16. “For example, when modifying parent-time (as opposed to custody), the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody.” Id.; see also Blocker v. Blocker, 2017 UT App 10, ¶ 10. “Further, in some cases, a lesser showing of changed circumstances may support modifying a stipulated award than would be required to modify an adjudicated award.” Peeples, 2019 UT App 207, ¶ 15. The district court properly viewed this as a custody rather than a parent-time change under U.C.A. § 30-3-10.4. The parents were awarded joint physical and legal custody, and Brenda was awarded primary physical custody under 30-3-35.1. The petition to modify sought the polar opposite giving Ryan primary physical custody and Brenda visitation pursuant to 35.1. This change would dramatically decrease the number of overnights the children would spend with mom. The change would also substantially disrupt and alter the children’s routines, expectations, and time with mom. Additionally, the change could affect where the children attend school.

Holding (12(b)(6) Dismissal): The district court did not give the proper weight to the allegations under 12(b)(6). The district court should have assumed the allegations were true under the 12(b)(6) analysis (the court also gives the full and standard 12(b)(6) analysis). The issue was remanded for further analysis and inquiry.

Holding (Sua Sponte Ruling on Failure to Mediate): The district court sua sponte dismissed the petition to modify for failure to mediate as required by the decree. This is reversed. “All parties are entitled to notice that a particular issue is being considered by a court and to an opportunity to present evidence and argument on that issue.” The opinion gives several other citations and quotations about the fairness and due process issues that are created from a lack of opportunity to respond. The court can raise issues sua sponte, but must give the responding party time notice that the issue is being raised and adequate time to respond.

 

Harper v. Harper, 2021 UT App 5

Utah Court of Appeals

Attorneys: D. Grant Dickinson, C. Kaye, Melanie J. Vartabedian, Allison G. Blenap, Nathan R. Marigoni

District Court: The Honorable James R. Taylor

Summary: Kelley Harper (nka Ian Giles) was awarded primary physical custody of the parties’ child. Harper filed a petition to modify based on concerns about Gile’s health and the child’s school attendance issues. The commissioner granted a request to change temporary custody to Harper and ordered Giles’ parent-time to be supervised. The parties went to trial over two (2) years later. At trial, the judge found that the substantial and material change in circumstances had not been met. The health concerns were the consequence of an adverse reaction to a prescription which was now resolved. The issues that had happened years earlier, were resolved.

Holding (Modification Basic Law): U.C.A. § 30-3-10.4(2)(b) states that to modify an existing joint legal or physical custody award, the filer must show 1) a material and substantial change of circumstance has occurred; and 2) a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child. “Only if circumstances have materially and substantially changed may the court proceed to the second step – a determination ‘as to the manner in which custody should be modified, if at all,’ based on a de novo review of the child’s best interest.”

Holding (Temporary Illness): “It is expected in periods of temporary disability that a joint parent will step in to see to the best interests of a child. But if such a circumstance were to justify a reconsideration of custody…, it would discourage openness, cooperation, and communication that is core to the expected behavior under just custody orders.” The flurry of issues that arose had been resolved and Giles had recovered to the same capacities that resulted in an order of primary physical custody at the time of the divorce.

Holding (Temporary Custody Change): The trial court was right to not consider the temporary custody change in the modification question. This is true even though the temporary custody change had resulted in the child being with Harper as the primary custodian for two and a half years by the time of trial.

 

Special Master

Thomas v. Thomas, 2021 UT App 8

Utah Court of Appeals

Attorneys: Rosemond G. Blakelock, Megan P. Blakelock, Todd F. Anderson

District Court: The Honorable Anthony L. Howell

Summary: The parents were constantly fighting and the father was alienating the children from the mother. The Court appointed a special master. The father was found in contempt on two separate orders and given opportunity to purge his contempt. The father appealed final orders of contempt that fined him, gave him jail time, threatened to take away his custody, etc. The Court of Appeals affirmed the contempt and sanctions. It also affirmed the authority of the special master to enter orders that were binding on the parties.

Holding (Special Master): Rule 53 allows the court to appoint a special master. The special master has the authority to make binding directives. See also Wight v. Wight, 2011 UT App 424, 268 P.3d 861.

 

Custody

Allen v. Allen, 2021 UT App 20

Utah Court of Appeals

Attorneys: Sara Pfrommer, Kathleen McConkie, Russell Yauney

District Court: The Honorable Amber M. Mettler

Summary: Husband appeals finding of contempt, alimony, child support, and custody. The appellate court affirms on all issues. This was a ten (10) year marriage with five (5) children. She worked part-time. He did not work and had a 100% disability rating from the US Dept. of Vet. Affairs. He was ordered to pay her $44,500 from the VA benefits that he had been receiving in addition to $1,200 in child support. During the case, he accumulated $54,014 in past due child support and unpaid retroactive support and benefits and was certified for contempt several times. The court at trial found her to be highly credible and him to lack credibility because of his conduct, testimony, and several inconsistencies. The court also found that despite his disability rating, husband did have the ability to work and chose not to. The court ordered him to jail for ten (10) days if he did not pay certain amounts and ordered him to pay her attorney fees. The Court also used his contempt against him in awarding her sole/sole custody. The issue of past due support had already been reduced to a judgment without an objection so the appeal on that issue failed. Other issues were also waived for failure to preserve them at trial.

Holding (Custody): The court was within its discretion to use father’s willful contempt to pay support against him in the custody analysis on two grounds. First, he was willfully defying the court, showing “questionable parenting, at best.” Second, he was failing to support the children, demonstrating “substantial indifference” toward them. Several other facts also played into the custody determination.

 

Alimony

Bjarnson v. Bjarnson, 2020 UT App 141

Utah Court of Appeals

Attorneys: Aaron R. Harris, Rosemond G. Blakelock, Megan P. Blakelock

District Court: The Honorable Derek P. Pullan

Summary: Wife moved in with her mother on a large estate and paid no rent following the separation. The district court incorrectly held that alimony would go up when/if she found housing of her own.

Holding (Prospective Awards): Prospective alimony adjustments are disfavored and are only appropriate when “future events that are certain to occur within a known time frame” are demonstrated. Here, it was not clear if or when wife planned to move out of her mother’s house. Therefore, the court should have based her alimony on her current need. Then, if she did move out, she could petition to modify the alimony award. In other cases, the courts have properly held that the party is temporarily impoverished as a biproduct of the divorce, and that they should be immediately restored to the standard of living at the time of marriage. See Sauer v. Sauer, 2017 UT App 144. This is a proper method to take, but it is not the route the court chose. Instead, the court chose a prospective route, and in this case, given the uncertainness of the future events, it was not appropriate.

 

Support

Allen v. Allen, 2021 UT App 20

Utah Court of Appeals

Attorneys: Sara Pfrommer, Kathleen McConkie, Russell Yauney

District Court: The Honorable Amber M. Mettler

Summary: Husband appeals finding of contempt, alimony, child support, and custody. The appellate court affirms on all issues. This was a ten (10) year marriage with five (5) children. She worked part-time. He did not work and had a 100% disability rating from the US Dept. of Vet. Affairs. He was ordered to pay her $44,500 from the VA benefits that he had been receiving in addition to $1,200 in child support. During the case, he accumulated $54,014 in past due child support and unpaid retroactive support and benefits and was certified for contempt several times. The court at trial found her to be highly credible and him to lack credibility because of his conduct, testimony, and several inconsistencies. The court also found that despite his disability rating, husband did have the ability to work and chose not to. The court ordered him to jail for ten (10) days if he did not pay certain amounts and ordered him to pay her attorney fees. The Court also used his contempt against him in awarding her sole/sole custody. The issue of past due support had already been reduced to a judgment without an objection so the appeal on that issue failed. Other issues were also waived for failure to preserve them at trial.

Holding (Ability to Work): The was within its discretion to find that husband had the ability to work despite his 100% disability rating. The court found that he is physically and mentally able to work and leads an active lifestyle of hiking, swimming, and taking jiu-jitsu.

Holding (Disability Benefits): The court was within its discretion to use husband’s $4,630 monthly VA benefit for 100% disability in regard to support calculations. The court rightly credited the husband with the $405 in monthly social security benefits that wife received. The credit was given pursuant to U.C.A. § 78B-12-203(9)(b), “social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earnings record it is based.”

Holding (Child Support Arrears): The district court was right to not apply credits for payments made before the temporary orders to support ordered after the temporary orders. Instead, those payments were for the time they were paid, and the times since the temporary orders remained unpaid.

 

Attorney Fees

Allen v. Allen, 2021 UT App 20

Utah Court of Appeals

Attorneys: Sara Pfrommer, Kathleen McConkie, Russell Yauney

District Court: The Honorable Amber M. Mettler

Summary: Husband appeals finding of contempt, alimony, child support, and custody. The appellate court affirms on all issues. This was a ten (10) year marriage with five (5) children. She worked part-time. He did not work and had a 100% disability rating from the US Dept. of Vet. Affairs. He was ordered to pay her $44,500 from the VA benefits that he had been receiving in addition to $1,200 in child support. During the case, he accumulated $54,014 in past due child support and unpaid retroactive support and benefits and was certified for contempt several times. The court at trial found her to be highly credible and him to lack credibility because of his conduct, testimony, and several inconsistencies. The court also found that despite his disability rating, husband did have the ability to work and chose not to. The court ordered him to jail for ten (10) days if he did not pay certain amounts and ordered him to pay her attorney fees. The Court also used his contempt against him in awarding her sole/sole custody. The issue of past due support had already been reduced to a judgment without an objection so the appeal on that issue failed. Other issues were also waived for failure to preserve them at trial.

Holding: (Attorney Fees): The court awarded attorney fees under U.C.A. § 78B-6-311(1) for his failure to pay support and the judgment on the benefits. However, the court denies the request for fees on the entire case under 30-3-3 because the parties stipulated to pay their own fees.

 

Contempt

Allen v. Allen, 2021 UT App 20

Utah Court of Appeals

Attorneys: Sara Pfrommer, Kathleen McConkie, Russell Yauney

District Court: The Honorable Amber M. Mettler

Summary: Husband appeals finding of contempt, alimony, child support, and custody. The appellate court affirms on all issues. This was a ten (10) year marriage with five (5) children. She worked part-time. He did not work and had a 100% disability rating from the US Dept. of Vet. Affairs. He was ordered to pay her $44,500 from the VA benefits that he had been receiving in addition to $1,200 in child support. During the case, he accumulated $54,014 in past due child support and unpaid retroactive support and benefits and was certified for contempt several times. The court at trial found her to be highly credible and him to lack credibility because of his conduct, testimony, and several inconsistencies. The court also found that despite his disability rating, husband did have the ability to work and chose not to. The court ordered him to jail for ten (10) days if he did not pay certain amounts and ordered him to pay her attorney fees. The Court also used his contempt against him in awarding her sole/sole custody. The issue of past due support had already been reduced to a judgment without an objection so the appeal on that issue failed. Other issues were also waived for failure to preserve them at trial.

Holding (Contempt Standard of Proof): The criminal standard was appropriate here because the nature of the contempt was “to vindicate [the court’s] authority by punishing [Kent] for his willful disobedience.” Citing Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 2, 302 P.3d 883 (“The characterization of a contempt proceeding determines the applicable standard of proof: criminal contempt must be proven beyond a reasonable doubt; civil contempt must be proven by clear and convincing evidence.”)

Holding (Contempt Ability to Comply): Husband said he could not give wife the ordered $44,500 judgement because he had spent all of his benefits before the temporary order hearing. The district court found this claim to be false and also found that spending $90,000 on his move to Utah and furnishing a new place was not credible. This is upheld.

 

Thomas v. Thomas, 2021 UT App 8

Utah Court of Appeals

Attorneys: Rosemond G. Blakelock, Megan P. Blakelock, Todd F. Anderson

District Court: The Honorable Anthony L. Howell

Summary: The parents were constantly fighting and the father was alienating the children from the mother. The Court appointed a special master. The father was found in contempt on two separate orders and given opportunity to purge his contempt. The father appealed final orders of contempt that fined him, gave him jail time, threatened to take away his custody, etc. The Court of Appeals affirmed the contempt and sanctions. It also affirmed the authority of the special master to enter orders that were binding on the parties.

Holding (Contempt): Jeremy had not made progress on the issue of alienating the children from Jody. The evidence supports this finding and it is upheld. It is important to note that this case holds a father in contempt for what he says are the children’s actions. The Court seems to hold him responsible as the adult. So, when his daughter allegedly claimed that Jody was allowing her to switch to a school near Jeremy’s house, he should have followed up with Jody before actually believing the child and enrolling her in school. In addition, even though the children did not want to go on visits, Jeremy had a duty to encourage them to go and to not do things that diminished their affection for their mother, that he failed to do.

 

Termination

In the Interest of C.Z., 2021 UT App 28

Utah Court of Appeals

Attorneys: Colleen K. Coebergh, Sean Reyes, John M. Peterson, Martha Pierce

Juvenile Court: The Honorable Mark W. May

Summary: The district court was affirmed in holding that the father had not remedied the circumstances that led to the child’s removal.

Holding (Termination): It was appropriate to terminate reunification services and move toward adoption in this case. The mother had many problems and eventually relinguished her rights to the child. The father kept trying to abide by reunification services, but was unsuccessful. He was repeatedly the victim of mother’s violence toward him the in the presence of the mother but he continued to go back to live with her. Even after she relinquished her rights, he continued to bring mother to his visits with the child. Also, father was not consistent with his therapy and continued to smoke marijuana with the mother causing problems with the family.

 

In the Interest of A.R.F. and M.J., 2021 UT App 31

Utah Court of Appeals

Attorneys: Angilee K. Dakic, Sean Reyes, Carol L.C. Verdoia, John M. Peterson, Martha Pierce

Juvenile Court: The Honorable Craig Bunnell

Summary: The children were initially placed in a non-Native American foster family because the court was not aware that the mother was part of the Cherokee Nation. Upon finding out, the court held the proper hearings and properly involved a Trible Caseworker. The Caseworker agreed with the team that the non-Native American placement was in the children’s best interest because the children were together, happy, and well-settled and that there were no Cherokee foster placements available for the children. This constituted “good cause” to deviate from the ICWA-preferred placement guidelines. The kinship placement suggestions from mother all had issues such as not being able to pass a BCI check.

Holding (Good Cause): ICWA establishes minimal Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes. 25 U.S.C. § 1902. Unless good cause exists, the child should be placed with the Indian child’s extended family, or a home certified by the Indian child’s tribe, or and Indian foster home, or an institution approved by the Indian tribe. The children’s bond with their foster family could be considered in removing to a qualified placement. Also, DCFS made diligent efforts to place the child with family or an approved placement under ICWA and was unsuccessful.

Holding (Virtual Parent-Time During Covid): The fact that mother only received virtual parent-time was not enough, in this case, to show that DCFS failed to make “active efforts” at reunification.

Holding (Strictly Necessary): This case met the threshold of strictly necessary for various reasons. The court made detailed findings that included the mother’s inability to care for the children, her active addiction problems, and her inability to follow even the basic requirements of the plan.

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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