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Family Law Update - July 2020

July 9, 2020

Termination of Parental Rights

In the Interest of B.T.B. and B.Z.B., 2020 UT 36

Utah Supreme Court

Attorneys: Martha Pierce, LaMar J. Winward; J. Robert Latham

Juvenile Court: Fifth District, Honorable Judge Michael F. Leavitt

Summary: In a private action, a father was accused of neglecting, abandoning his children making only token efforts over five (5) years to contact them. The mother petitioned to terminate his rights. A second parent adoption was not on the table. The appellate court disagreed with previous appellate decisions that the requirement of whether a termination is strictly necessary flowed “almost automatically” from the best interest standard. The Supreme Court upholds the Court of Appeals and finds that strictly necessary must be found and that it is part of the best interest analysis.

Holding (Strictly Necessary): Under U.C.A. § 78A-6-503, 506, and 507, there is a two-step process to terminating a parent’s rights. First, the court must find that one of the grounds in the statute have been met, to wit, abandonment, neglect, abuse, unfitness, or incompetence. Second, once a ground has been found, a separate inquire of the best interest of the child must take place. As part of the second step, the court must make specific findings that it is strictly necessary to terminate and that no other options are available that would be equally good for the child.

Holding (Overturning “Almost Automatically” Cases): The cases that previously held that if statutory grounds were found for termination and it was in the child’s best interest, then it “almost automatically” followed that it was strictly necessary are overturned. The analysis should not be automatic and instead, it truly must be specifically found that the termination is strictly necessary.

Holding (Burdon of Proof): The burden of proof on these cases is clear and convincing evidence and it is improper to shift the burden to the Respondent to show best interest. The burden of the entire test rests squarely with the petitioner.

Holding (Policy Considerations): The court points to many policy considerations in keeping a nuclear family intact. They are listed in U.C.A. § 78A-6-503. They include that “a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” Also, “a fundamental liberty interest does not cease to exist simply because…a parent may fail to be a model parent” or “because the parent’s child is placed in a temporary custody of the state.” Importantly, “it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Further, “a child’s need for a normal family life in a permanent home, and for positive, nurturing, family relationships is usually best met by the child’s natural parents.”

Holding (Strictly Necessary is Not a Third Element): The father argued that “strictly necessary” is a third element to the termination test. The court does not agree. The court finds that strictly necessary is a part of the best interest analysis.


Somer v. Somer, 2020 UT App 93

Utah Court of Appeals

District Court: Honorable Richard D. McKelvie, 3rd District

Attorneys: Carolyn Perkins; Brady T. Gibbs

Summary: Eric filed a petition to modify to terminate alimony. Kelley failed to respond timely. Eric received a default terminating alimony. Kelley moved to set aside as excusable neglect under Utah R. Civ. P. 60. The district court denied the motion and the default remained. The appellate court affirms.

Holding (Excusable Neglect): In this context, district courts not only have discretion, they have “broad discretion.” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 859 (emphasis added); see also Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198 (“The outcome of rule 60(b) motions are rarely vulnerable to attack. We grant broad discretion to … rule 60(b) rulings because most are equitable in nature, saturated with facts, and call upon judges to apply fundamental principles of fairness that do not easily lend themselves to appellate review.”). Simply disagreeing with the district court’s conclusion is not enough. The question, then, is whether a party exhibited due diligence by a reasonable person under similar circumstances standard. Kelley exerted some diligence, but under the circumstances the court had discretion to find that it was not enough. She had been personally served with a summons with clear admonishments. Further, she knew how to hire an attorney and had four (4) previous attorneys. Also, Kelley had a history of tardiness in the case and she knew the consequences of this as the parties had previously litigated three prior motions for default.

Holding (Standard on Objection from Commissioner): The district court in this case used the wrong standard of “abuse of discretion” when reviewing the commissioner’s recommendation. Day v. Barnes, 2018 UT App 143, 427 P.3d 1272 requires “independent findings of fact and conclusions of law based on the evidence” in objection hearings from commissioners recommendations.

Holding (Invited Error): “Under the doctrine of invited error, an error is invited when counsel encourages the [district] court to make an erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. To invite error, a “party must manifest some sort of affirmative representation to the [district] court that the court is proceeding appropriately.” State v. Carrick, 2020 UT App 18, ¶ 34, 458 P.3d 1167 (cleaned up). “Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court” does not consider the party’s objection to that action on appeal. State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985; see also ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 20, 397 P.3d 772. Eric’s counsel invited this error because they told the district court this was the standard.

Young v. Hagel, 2020 UT App 100

Utah Court of Appeals

Attorneys: Steve S. Christensen; Clinton R. Brimhall; Mark R. Hales

District Court: Honorable John R. Morris

Summary: After four years of a contested custody case, Mother’s attorney withdrew, albeit incorrectly by only giving notice instead of filing a motion since there was an active motion for order to show cause pending. Then, opposing counsel filed a “notice of appearance” which was apparently meant to be a “notice to appear or appoint.” That attorney later filed a motion to default her, but did not serve the motion upon her. The court then defaulted against the mother for not responding to the notice to appear or appoint and held her in contempt and modified the orders as requested. Mother’s new attorney filed a motion under excusable neglect in Utah R. Civ. P. 60. The court denied the motion and kept the default. The default is reversed in this appellate decision.

Holding (Rule 60 in General): “Though district courts have ‘broad discretion’ to grant or deny rule 60(b) motions, that discretion is ‘not unlimited,’ especially in the context of default judgments.” Citing Lund v. Brown, 2000 UT 75, ¶ 10, 11 P.3d 277. “When a default judgment is at issue, rule 60(b) motions ‘should be liberally granted because of the equitable nature of the rule,’ and courts ‘should exercise [their] discretion in favor of granting relief so that controversies can be decided on the merits rather than on technicalities.’” Menzies, 2006 UT 81, ¶ 54, 150 P.3d 480. “A district court abuses its discretion if it denies a rule 60(b) motion to set aside a default judgment in a case where all of the requirements for the granting of that motion are met.” There are several more quotes in this case about preferring substantive process over default. A litigant is “entitled to have a default judgment set aside under rule 60(b)” if three requirements are satisfied: “(1) the motion is timely; (2) there is a basis for granting relief under one of the subsections of [rule] 60(b); and (3) the movant has alleged a meritorious defense.”

Holding (Service after Default): Although a litigant may not be entitled to service after they fail to file an answer to a complaint, and therefore is in default regardless of whether the clerk has entered it or not, failing to respond to a notice to appear or appoint is different. “a litigant who fails to timely respond to a notice to appear or appoint has not necessarily ‘failed to plead or otherwise defend’ against allegations raised in a complaint.” There is no specific response required from such a notice for a party who is pro se. “To be sure, a newly pro se party is not entitled to remain inactive indefinitely, but the default is not automatic.” The default was unwarranted given the mother’s “active participation in the litigation up to that point.” Because mother was not in “default” she was entitled to service of the subsequent motions.

Protective Order

Pon v. Brewer, 2020 UT App 99

Utah Court of Appeals

District Court: Honorable Robert P. Faust

Attorneys: Kelly Ann Booth; Gregory N. Berbrache

Summary: The time period to object to a commissioner’s recommendation to a protective order is ten (10) days under U.C.A. § 78B-7-107(1)(f). It is not the fourteen (14) days under Utah R. Civ. P. 108(a). The Respondent failed to meet the ten (10) day requirement and the Petitioner’s motion to strike his objection was upheld by the district court and affirmed by the appellate court.

Holding: The more specific timeline pertaining directly to protective orders in U.C.A. § 78B-7-107(1)(f) is the governing timeline because that in Utah R. Civ. P. 108(a) is a general rule and does not specifically mention protective orders.

The court goes into an analysis of the constitutionality of the timelines in rules and statutes.

Stalking Injunction

Hardy v. Hardy, 2020 UT App 88

Utah Court of Appeals

District Court: Honorable Michael Leavitt, 5th District

Attorneys: Lewis P. Reece; Devon James Herrmann; Benjamin Lusty; Stephanie Lenhart

Summary: The district court held that ex-husband Brian had stalked ex-wife Karen when he went to the child’s therapist and observed and took photos of them going into the therapist. The court held that observing and taking photos were two separate acts under the statute. The appellate court disagrees and reverses the stalking injunction.

Holding (The Law): Utah Code section 77-3a-101 allows for the entry of a civil stalking injunction upon a district court finding that “an offense of stalking has occurred.” Utah Code Ann. § 77-3a-101(5)(a) (LexisNexis 2017). Under Utah law, stalking occurs when a person

intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the 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.

Id. § 76-5-106.5(2) (Supp. 2019). A “course of conduct” is defined as “two or more acts directed at or toward a specific person” and can include, among other things, “acts in which the actor follows, monitors, observes, photographs, surveils, [or] threatens … a person.” Id. § 76-5-106.5(1)(b)(i).

Holding (Two Acts): “Observing and photographing Karen at the same time and for the same purpose was not sufficient to establish a course of conduct under the stalking statute. Observing someone is generally inherent in the act of photographing them.” “Just because observing and photographing are listed separately in the statute does not mean that they are distinct acts when they occur simultaneously.”

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