OUR LATEST LEGAL SUCCESS STORIES
Unprecedented issue won (and attorney fees) on back child support from multiple marriages and divorces to the same spouse.
In a recent case, the parties were divorced in 2011 (Divorce #1), remarried in 2013, and then divorced again in 2016 (Divorce #2). My client (Father) struggled to maintain employment and pay support after Divorce #1 and was in arrears (i.e., owed back support) in the amount of almost $50,000. When the parties reconciled and remarried, the opposing party (Mother) zeroed out the administrative support case with the Utah Office of Recovery Services (ORS). When the parties could not successfully navigate the remarriage and entered into Divorce #2, Mother never raised the issue of the $50,000 arrears from Divorce #1. Three years after Divorce #2 (and seven years after Divorce #1), Mother filed a Motion for Order to Show Cause seeking enforcement of the $50,000 in support arrears from Divorce #1.
Father came to me in disbelief. I initially persuaded the Court that the parties were required to participate in mediation and that attorney fees in my client’s favor should be “reserved” as an issue for any future hearing. At mediation, I persuaded Mother that even if the Court found that Mother was entitled to some relief, she had filed her motion one month too late under the general eight-year Statute of Limitations on alimony, which meant that she would only be entitled to the child support arrears. I was aware that this argument was not on solid legal footing, but it still gave Mother pause about going for the whole $50,000. Father made a good faith offer of settlement for about $25,000 (in add-on payments to the already existing monthly support). (Father was current on support in Divorce #2.) Mother subsequently rejected this offer and decided to argue the matter before the Court.
In my objection to Mother’s motion, I made several “alternative” arguments. I argued that Mother failed to timely assert her claim for support arrears (from Divorce #1) at the time of Divorce #2 (using an equitable defense called “forfeiture”). I also argued that Mother had unreasonably delayed bringing this action for old support, which prejudiced Father because too much time had passed and it was too difficult to establish precisely how much support Father owed and Father had no way of proving he had paid support in other ways, called “in-kind support,” e.g., paying Mother’s bills, etc. (using an equitable defense called “Laches”). Finally, I argued that Mother should be barred from collecting this support now and that it had been “forgiven” based on an analogous or similar case that stood for the policy or principle that it would be unfair for Mother to hold the support arrears over Father’s head during the time of their remarriage because it did not create an incentive for the parties to try hard to make the remarriage successful, which was more important in the big picture for the children than old support arrears.
The family court commissioner in the case had been a longtime Assistant Attorney General for ORS and, thus, was a veritable support expert. In her thoughtful decision, she held that Mother had, in fact, waived the claim on old support from Divorce #1 at the time of the Divorce #2, that she had unreasonably delayed bringing the action, which prejudiced Father under the equitable doctrine of Laches, that Mother did not timely assert her claim at the time of Divorce #2 under the equitable doctrine of Forfeiture, and that it was against public policy to allow Mother to hold the old claim for support over Father’s head during the remarriage, because it would be an impediment to making the remarriage work. In other words, the court incorporated most of our arguments into her decision. The court also awarded my client attorney fees as a substantially prevailing party. He expressed later that he was grateful he had hired an attorney who was “good on paper and in court.”
JUDGE UPHOLDS MODIFICATION DEFAULT JUDGMENT FOR MY CLIENT
I came onto this modification case late after it had been inactive for over 2 years without any progress. The Court scheduled an Order to Show Cause Hearing requiring both parties to appear and explain why the case had not been prosecuted in that 2 years. The Father failed to appear at that hearing. I successfully persuaded the Court at that time to enter a default and strike the Father’s pleadings, giving my client (Mother) everything she asked for in her modification petition, including favorable changes to the parent-time schedule and additional child support.
After the Court signed the default judgment, the Father timely filed a Rule 60(b) Motion to Set Aside the Default Judgment within 60 days and finally hired an attorney. I advised Mother that the Court disfavors default judgments, so there was a good possibility that the Court would give the Father a second bite at the apple.
The reason for Father’s failure to appear at the earlier Order to Show Cause Hearing was because he had not updated his mailing address with the Court, so he never received the Notice of Hearing. At the Set Aside Hearing, during Oral Argument, I argued that the Default Judgment should not be set aside, because the Father had failed to exercise due diligence, as required in the case law, by not keeping his mailing address current with the Court and for failing to prove (not merely allege), e.g., surprise, fraud, excusable neglect, etc.
In ruling in my client’s favor and against Father, the Court laid out its findings by directly citing a case I had supplied in our Response/Objection that was “on point,” in that the facts were very similar. In that case, the losing party argued that there had been mail problems and that they had not received notices of discovery orders. The Court there held that the losing party had failed to exercise due diligence by maintaining contact with the other party.
JUDGE FINDS IN FAVOR OF MY CLIENT AND DOES NOT SET ASIDE STIPULATION
After a long, drawn out mediation, the opposing party (spouse) in this case decided she was not happy with the decisions that had been reached. She was hoping for even more money in different areas. After months of pleadings submitted to the Court by both sides requesting and arguing for and against a set aside of the stipulation agreement, an evidentiary hearing was finally held in front of a District Court Judge. After almost 4 hours of proffering evidence and arguing law as it pertains to this case, Judge Powell found in favor of my client and did not set aside the stipulation. Judge Powell will further follow my recommendations to statutorily and equitably adjust only 2 provisions in the Stipulation. My client and I won on everything.
GLOBAL RESOLUTION REACHED IN PARENTAGE ACTION AFTER STRATEGIC MOTION FILING
Case was a year old. Mediation was unsuccessful, because the custodial parent was not being reasonable on custody/parent-time. She was also demanding back child support for 14 years (backdated to the child’s birth).
To create leverage for my client, I filed a Motion for Temporary Orders with a request to incorporate or enforce a relatively recent agreement the parties had entered into prior to litigation in which my client had joint physical custody. Opposing party did not even file a Response.
Prior to the Temporary Order Hearing, opposing party caved to several terms of a global Stipulated Parentage Decree that were favorable to my client, including joint physical custody, zeroed out past due out-of-pocket medical and insurance premium expenses, and a settlement on child support arrears, saving my client thousands of dollars on a judgment for past due child support.
THWARTED EX-WIFE’S EFFORT TO KEEP ALL OF THE INSURANCE PAYOUT
Opposing party filed a Motion for Order to Show Cause seeking an award for insurance proceeds that had been distributed post-divorce for the replacement cost of personal property damaged and/or lost due to flooding in the parties’ apartment prior to divorce. The moving party claimed that the parties had already divided their personal property before the flood loss date and, therefore, she was entitled to 100% of the insurance payout.
I filed a Memorandum of Law in Response with persuasive case law arguing that the moving party should have filed, instead, a Petition to Modify the Divorce Decree, because the Divorce Decree did not contain any language or provision referencing insurance proceeds, etc. As such, there was no clause or term in the existing Decree for the Court to “enforce.” I also showed that the parties had not divided their personal property prior to the flood loss date. VERDICT. Opposing party’s Motion for Order to Show Cause DENIED.
SERIOUS PROBATION VIOLATOR GETS HOME CONFINEMENT & WORK RELEASE INSTEAD OF JAIL TIME
My office successfully persuaded a Salt Lake City Justice Court Judge to order 30-days home confinement and work release with a “SCRAM” GPS ankle monitor device for a client, even though he had committed several probation violations and both the prosecutor and the probation officer were both recommending additional jail time. Our client had only recently completed probation for his first Impaired Driving conviction a year earlier (amended down from a DUI) and was now facing a second DUI a year later. The result saved his job.
QUASHED EX-SPOUSE’S SUBPOENA FOR CLIENT’S CELL PHONE DATA
My office successfully quashed a subpoena served by a scorned ex-spouse for my client’s cell phone data. We had previously obtained a Child Protective Order for our client after the intoxicated ex-spouse had assaulted their teenage daughter during parent-time. The ex-spouse’s attorney attempted to argue that emails or text messages on my client’s cell phone between the victim-daughter and my client possibly contained information that could assist the ex-spouse in the criminal case.
METABOLITE DUI DISMISSAL
I secured a dismissal of a DUI charge for a client in Tooele County Justice Court. My client had been involved in a two-vehicle rear-end crash and was at-fault. During the crash investigation and subsequent DUI investigation, the police officer observed several indicia of impairment (e.g., poor balance, glossy eyes, disorientation, and other erratic behavior). My client also failed the roadside Field Sobriety Tests. My client did not have alcohol or illegal drugs in his system, but he did have prescription drugs as evidenced by a blood test taken post-arrest.
My client, who is a student and parent of five children, was thrilled to avoid the severe and long-lasting consequences of a DUI on his criminal and drive record. In 30 days, we can petition the court to have the DUI arrest expunged or sealed in my client’s criminal history.