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CASE LAW UPDATE FOR MAY 2002- presented by Terry Cathcart at the Annual Family Law Seminar
Clark v. Clark, 423 Utah Adv. Rep.3 (SC, 6/05/01); 27 P.3d (Utah 2001)
http://courtlink.utcourts.gov/opinions/supopin/clark2.htm
The Supreme Court upheld the Court of Appeals’ earlier memorandum decision stating that the filing of an action to establish an unsolemnized marriage and divorce tolls the one-year statute of limitations as it relates to the relationship termination. The Supreme Court specifically overruled Bunch v. Englehorn, 906
P.2d 918, which had previously stated that for a divorce action the action must be completed prior to the one year. (Interesting concurring and dissenting opinions relating to stare decisis.) Companion case Greaves v. Baker, 423
Utah Adv. Rep. 9, (SC, 6/05/01); 28 P.3d 668 (Utah 2001).
T.S. v. L.F., 423 Utah Adv. Rep. 13 (CA, 6/07/01); 27 P.2d 583 (Utah App. 2001):
http://courtlink.utcourts.gov/opinions/appopin/ts.htm
An adoption case that dealt with compliance with the adoption statute, notice and the appropriate court for jurisdiction. The Court ruled that
the adoption statute required appellants, the mother, grandmother and child, to give notice to the father regarding adoption. They failed to give appropriate notice and therefor the adoption was not final as
to father.
Barton v. Barton, 424 Utah Adv. Rep. 21 (CA, 6/28/01); 29 P.3d 13 (Utah App. 2001)
http://courtlink.utcourts.gov/opinions/appopin/barton.htm
This case involved a post divorce dispute involving custody and primarily the appropriate jurisdiction when the mother and children had moved to
California. The Court reviewed an addendum to the Divorce Decree as well as the Parental Kidnapping Prevention Act (PKPA). The Court of Appeals remanded the case to the trial court for further findings
on jurisdiction, especially the residence of the father, which was necessary to establish the court’s jurisdiction once the mother and children had moved from Utah.
M.E. v. State of Utah, 424 Utah Adv. Rep. 39 (CA, 6/28/01); 29 P.3d 31 (Utah App. 2001)
http://courtlink.utcourts.gov/opinions/appopin/me.htm
The Court of Appeals upheld the termination of the father’s parental rights finding that he had waived counsel and that his absence from trial for two
days was voluntary. The father had been incarcerated but failed to notify jail personnel of the first day’s hearing and caused a disturbance while being transported to the second day’s hearing and was returned
to jail.
Davis v. Davis, 426 Utah Adv. Rep. 3 (CA, 7/19/01); 29 P.3d 676 (Utah App. 2001)
http://courtlink.utcourts.gov/opinions/appopin/davis_tb.htm
This was a custody dispute between the natural father and the maternal grandparents. Father objected to the Court disregarding the parental
presumption in his favor. However, the Court ruled and was upheld by the Court of Appeals that when father previously stipulated to custody for the maternal grandparents, he lost any parental presumption that
he might have had.
Brockbank v. Brockbank, 428 Utah Adv. Rep. 33 (CA, 8/23/01); *P.3d) (Utah App. 2001)
http://courtlink.utcourts.gov/opinions/appopin/brockb~1.htm
(This case has not been released for publication in permanent law reports. Until released, it is subject to revision or withdrawal.)
This was the third appeal in this divorce case and dealt with exercising the right of redemption regarding a sheriff’s sale of property. The Court held
that a third party had exercised her right of redemption and that the sale proceeds were properly paid to Petitioner, the wife, who had credited proceeds to Respondent, husband.
Therefor, Petitioner waived any defects in the sheriff’s sale or other claims of fraudulent transfer.
In the matter of the adoption of B.V., a minor; 431 Utah Adv. Rep. 18 (CA, 10/04/01)
http://courtlink.utcourts.gov/opinions/appopin/sh.htm
Termination of a father’s parental rights was reversed. When a birth mother consents to a child’s adoption soon after the child’s birth, in this
case within days of the child’s birth, the Utah Code merely requires that the father agrees to be legally responsible for expenses and to make reasonable efforts to contribute to medical and pregnancy related
expenses if he is able to do so. The father did so in this case as well as agreeing to implementation of a Court order requiring him to pay child support.
In re: S.A. (D.A. v. State of Utah), 432 Utah Adv. Rep. 21 (CA, 10/18/01); P.3d (Utah App. 2001);”
http://courtlink.utcourts.gov/opinions/appopin/sa_266.htm
The first of two cases regarding S.A., the mother of a juvenile.
In this case, D.A., the father, alleged that his due process rights were violated by not being allowed to participate in the haring regarding his child. The Court of Appeals agreed and stated that the father had a protected liberty interest in the care and custody of S.A. as well as an interest in maintaining a relationship with the mother and these interests were affected by the juvenile court proceedings in which he should have been able to participate.
In re: S.A. (M.A. v. State of Utah), 432 Utah Adv. Rep. 17 (CA, 10/18/01); *P.3d* (Utah App. 2001)
http://courtlink.utcourts.gov/opinions/appopin/sa_265.htm
In this case the Court stated that the mother’s due process rights were not violated by simultaneous proceedings in both a criminal prosecution and a
juvenile court custody action.
Wilde v. Wilde, 433 Utah Adv. Rep. 14 (CA, 10/25/01); * P.3d * (Utah App. 2001):
http://courtlink.utcourts.gov/opinions/appopin/wilde_jl.htm
In her second appeal, Respondent/Appellant wife was denied her request for retroactive alimony based upon a change in the divorce statute. Furthermore,
the Court denied her objection regarding her ability to contribute to her support and her request for attorney's fees based upon her failure to establish the reasonableness of the fees and for not allocating the
fees between two parts of her action.
In re: S.D.C., 435 Utah Adv. Rep. 22 (CA, 11/23/01); * P.3d * (Utah App. 2001):
http://courtlink.utcourts.gov/opinions/appopin/pdc.htm
Father appealed the termination of his parental rights claiming that the Guardian ad Litem for his child did not have standing to file a petition on
behalf of his child. Furthermore, father claimed the petition filed by the Guardian ad Litem was a second petition, which was barred by res judicata. The Court of Appeals held that the Guardian ad Litem did
indeed have the authority to file on behalf of the child and the second petition was based on events occurring after the first petition had been dismissed and was therefore not barred by res judicata.
Searle v. Searle, 436 Utah Adv. Rep. 10 (CA, 12/06/01); * P.3d * (Utah App. 2001):
http://courtlink.utcourts.gov/opinions/appopin/searle~1.htm
This case dealt with jurisdictional questions and the entry of a custody decree from a tribal court under the Utah Foreign Judgment Act. Although the
Court of Appeals seem to be less than thrilled about entering its order which awarded custody to the mother and went against visitation for the paternal grandparents of the deceased father, the Court held that the
mother had appropriately filed the foreign judgment from the tribal court.
In re: R.M., 437 Utah Adv. Rep. 30 (CA, 12/20/01); * P.3d * (Utah App. 2001):
http://courtlink.utcourts.gov/opinions/appopin/rm.htm
Dr. Mercedes Reisinger was appointed by the juvenile court as an expert witness in a custody determination. Subsequently, even though the Guardian ad
Litem used the expert witness' testimony, the trial court appropriately apportioned the cost of the expert to the Division of Child and Family Services. The Court of Appeal stated that the Utah Code allows the
juvenile court to appoint witnesses and to apportion their fees.
In re: W.A., 442 Utah Adv. Rep. 27 (CA, 3/07/02); * P.3d * (Utah App. 2002):
http://courtlink.utcourts.gov/opinions/appopin/wa.htm
The Court of Appeals had an extended discussion regarding termination of parental rights and whether or not Utah lacked personal jurisdiction under the
long arm statute over the father of the minor child who was incarcerated in another state. The Court had an extended discussion regarding minimum contacts, the long arm statute and the status exception.
Additionally, for those of you who have forgotten, there was also extensive discussion regarding International Shoe, the infamous law school and seminal case regarding long arm jurisdiction.
Johansen v. Johansen, 443 Utah Adv. Rep. 22 (CA, 3/14/02); * P.3d * (Utah App. 2002):
http://courtlink.utcourts.gov/opinions/appopin/johansen.htm
The Court of Appeals held that the automatic adjustment statute for child support is a procedural statute and thus applies to the reduction of child
support once one of the children reaches majority unless the order that was entered prior to the automatic adjustment statute provides otherwise. In this case, the original decree had no other provisions and the
Court found that the child support should have been automatically adjusted based upon the remaining children and the incomes of the parties at the time of the decree.
In re: B.B., 443 Utah Adv. Rep. 45 (CA, 3/21/02); * P.3d * (Utah App. 2002):
http://courtlink.utcourts.gov/opinions/appopin/ks.htm
An extended discussion about juvenile court jurisdiction regarding a visitation order related to an agreement between grandparents and adoptive parents
which was partially the basis for the adoptive parents being granted the adoption.
Elman v. Elman, 443 Utah Adv. Rep. 40 (CA, 3/21/02); * P.3d * (Utah App. 2002):
http://courtlink.utcourts.gov/opinions/appopin/elman.htm
Husband appealed the trial court's determination awarding wife a portion of the appreciation on husband's premarital partnership interest. The Court
found that the separate property of the husband was awarded to the wife in the "extraordinary situation where equity so demands." (quoting Mortensen, 760 P.2d at 308).
Fisher v. Fisher
VKW v. Utah
T.M. and J.M v. State of Utah
T.Y. v. State of Utah
B.J.B. v. H.J.
D.K.C. and E.L.C. v. C.S.
Gunderman v. Helms
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