Family Law Update 1988
| Jurisdiction | Utah,United States |
| Pages | 9 |
| Publication year | 1988 |
| Citation | Vol. 1 No. 1 Pg. 9 |
| Date | 01 September 1988 |
August, 1988
David S. Dolowitz, J.
In 1986 the legislature of the State of Utah created a Court of Appeals as section 78-2(a)-l, Utah Code Annotated (1986) et. seq., and in subsection (g) of section 78-2(a)-3, Utah Code Annotated (1986), placed jurisdiction over domestic relations cases in the Court of Appeals. This had the effect not only of lightening the work load of the Utah Supreme Court, but of creating a court that would develop a particularized expertise in family law matters. The Supreme court may review decisions of the Court of Appeals in section 78-2(a)-4 Utah Code Annotated, on a discretionary basis and thus retains ultimate power to make the determinations of law and policy that will effect family law in Utah. The practical effect of the establishment of the Court of Appeals is to substantially shorten the time spent in appeals for family law matters, which is crucial to our clients and will allow them to have their family disputes resolved more expeditiously and establish a body of law by a court specializing in that area.
COMMISSIONER SYSTEM
Most of the district courts in Utah have adopted a commissioner system pursuant to section 30-3-4.1 through 4.4, Utah Code Annotated (1985). Proceedings before the commissioner were examined in Wiscombe v. Wiscombe, 744 P.2d 1024 (Utah App. 1987). The Court of Appeals noted that hearings before domestic relations commissioners are based solely on proffers. There is no submission of evidence or testimony. In the Wiscombe case itself, counsel for Mr. Wiscombe had objected to the recommendation of the commissioner at the conclusion of the hearing, but had not filed a written objection to the recommendation. When he reached the trial court on his objection, the trial court refused to hold a hearing, ruling that no preservation of the objection had been made in writing and therefore there was none to be reviewed. The Court of Appeals determined that this ruling created a denial of due process of law. The challenged order was vacated and remanded. The Court of Appeals declared that one of the fundamental requirements of due process is an opportunity to be fully heard. The opinion suggests that a full evidentiary hearing must be available upon demand or due process is violated. This may not be the specific ruling, but it is the implication of the decision.
ALIMONY
There is a significant change occurring in decisions regarding alimony commencing with Jones v. Jones, 700 P.2d 1072 (Utah 1985), and Olson v. Olson, 704 P.2d 564 (Utah 1985), where the Supreme Court ruled that permanent alimony should be awarded in long-term marriages in amounts commensurate, as nearly as possible, with the living standard enjoyed by the parties during the marriage. Such amounts are then adjusted as to the ability of the recipient to supply income for himself/herself and the ability of the payor to produce income. In one of its first opinions, Eames v. Eames, 735 P.2d 395 (Utah App. 1987), the Court of Appeals explored these same factors as re-articulated by the Utah Supreme Court in Paffel v. Paffel, 732 P.2d 96 (Utah 1986), and upheld an award of alimony that would last until the recipient began receiving retirement income. In Canning v. Canning, 744 P.2d 325 (Utah App. 1987), the Court held that the failure of the trial court to apply these criteria appropriately, particularly in the absence of a finding of the recipient's current or future ability to work, constituted clear error and required reversal. In a similar decision, Rasband v. Rasband, 752 P.2d 1331 (Utah App. 1988), the Court ruled that the trial court erred in ordering declining alimony after a twenty-nine year marriage, where the husband had a demonstrated ability to earn a substantial income, and the wife had demonstrated no significant ability to earn income, and had to provide care for a disabled, adult child. On the other hand, where the Court of Appeals found the trial court had appropriately considered the factors and determined that alimony should not be awarded, the decision was affirmed. Boyle v. Boyle, 735 P.2d 669 (Utah App. 1987).
The Court of Appeals, expanding on the theme that appeared in a number of recent cases, articulated that alimony is to enable the recipient to maintain as nearly as possible the standard of living enjoyed by the recipient during the course of the marriage. Naranjo v. Naranjo, 751 P.2d 1144 (Utah App. 1988). The Court further held that when an alimony award is required under the articulated criteria, it was proper to order it paid even though the payments would have to come from proceeds of a contract of sale, which the trial court determined were the separate property of the payor's spouse. Sampinos v. Sampinos, 750 P.2d 615 (Utah App, 1988).
The Court of Appeals articulated the standard that trial courts must set out specific findings that will support their determinations, and, in the absence of such proper findings, the rulings of the trial courts will be reversed. Ruhsam v. Ruhsam, 742 P.2d 123 (Utah App. 1987); Lee v. Lee, 744 P.2d 1378 (Utah App. 1987); Marchant v. Marchant, 743 P.2d 199 (Utah App. 1987). The Utah Supreme Court, without citing these cases, articulated precisely the same standard on January 4, 1988, in Gardner v. Gardner, 748 P.2d 1076 (Utah 1988), and in Davis v. Davis, 749 P.2d 647 (Utah 1988).
The Utah Court of Appeals in Petersen v. Petersen, 737 P.2d 237 (Utah App. 1987), explored the issue of division of a professional license, ruled that a professional license was not property to be divided, but that reimbursement alimony could be utilized in appropriate circumstances to effect an equitable award that could not otherwise be effected. This was based on the fact that a professional license cannot be divided, and as the court noted, 737 P.2d 242, this type of award may be necessary to effect a division where property interest exists but is not recognized under traditional property concepts and cannot be divided. In Petersen, an award of $120, 000.00 to compensate for a medical degree was vacated, but the payments that were ordered, $1, 000.00 per month, were continued as alimony. This approach was followed in Raybum v. Ray-bum, 738 P.2d 238 (Utah App. 1987), where a $45, 000.00 award was revised into alimony, payable at $750.00 per month.
These rulings of the Utah Court of Appeals were observed by the Utah Supreme Court in Gardner v. Gardner, 748 P.2d 1076, 73 Utah Adv. Rep. 35, 37, 38 (Utah 1988). However, no ruling was made as to whether or not the reimbursement alimony principle was correct. The Supreme Court noted that such a decision was not necessary in the Gardner case, as the parties had been married for a long time, and a substantial marital estate was to be divided. In this sense, Mrs. Gardner had already realized the benefits of the medical degree in the property she was receiving, therefore, the trial court's determination that no award to her to offset that degree was affirmed.
After the Utah Supreme Court articulated the Gardner decision, the issue of professional degree was again considered by the Court of Appeals in Martinez v. Martinez, 80 Utah Adv. Rep. 30, 754 P.2d 69 (Utah App. 1988). The Court first determined that where the trial court had not awarded alimony or child support based upon the earnings of the professional since completing a professional education and starting practice, the Court erred and increased by doubling these awards. The Court then ruled the non-professional spouse who had helped the professional spouse acquire training, but had received no return on that investment (in contrast to Gardner), was entitled to "equitable restitution." The case was then remanded for further hearing by the trial court as to appropriate, equitable restitution, which should be paid to the spouse whose sacrifice had led to the professional spouse acquiring the professional education but had obtained nothing in terms of property, income or enjoyment of lifestyle as a result of the attainment of that professional degree.
In two decisions, the Utah Court of Appeals reversed property awards, and in their remand to the trial courts, specifically directed the trial courts to re-examine the denial of alimony or the award of minimal alimony in light of the changed property award, Bailey v. Bailey, 745 P.2d 830 (Utah App. 1987); Smith v. Smith, 738 P.2d 655 (Utah App. 1987).
In 1980, the Utah Supreme Court, in a footnote, observed that, as a result of change of section 30-3-5, Utah Code Annotated (1953), the Utah District Courts should have the power to award alimony in the face of an appropriate change of circumstance where it was initially waived or not awarded. Georgedes v. Georgedes, 627 P.2d 44 (Utah 1981). This question reached the Utah Court of Appeals in Kinsman v. Kinsman, 748 P.2d 210 (Utah App. 1988). In this case, the trial court awarded alimony, after it had been initially waived when the husband took out bankruptcy and left his wife with substantial obligations that he had agreed to pay. While all three of the...
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