Kielkowski v Kielkowski

The parties divorced using a petition and default decree. The decree did not set out custody or support for wife’s child she had with another man after the parties separated. Husband had a relationship with the child and paid support. When wife petitioned for adoption of child by her new husband, husband moved to modify the decree to award him parenting time and set child support. The district court denied his motion ruling the statement in the petition that there were no children meant the issues had been adjudicated in the decree. The panel, 2-1, reversed and remanded. The majority held that under the Parentage Act, Utah Code 78B-15-101 et seq., husband is the presumed father of the child and remains so unless a court finds he is not, genetic testing proves he is not or one of the other grounds listed in the Act is proven.  Here, allowing the default decree to control would allow the Act to be avoided and parentage terminated without an impartial adjudication of paternity. The majority further held that a modification petition is an approximate vehicle to raise the issue as the best interest of the child are the paramount consideration in the paternity setting and Utah precedent allows modification of a divorce decree when a material omission creates a need that must be resolved by the court and thus Rule 60 is not the only way to modify the decree in these circumstances. The majority finally held that the claim was timely as the presumption that husband is still in effect as neither party attempted to rebut the presumption in the divorce action. Thus, it was error to not hear the petition and the case was remanded. The dissent argued that the only method available to set aside a default judgment is a Rule 60 motion and here husband filed after the 3 month deadline and is therefore barred from raising his issue.

State v Sanchez

Sanchez appealed his sentence arguing the district court abused its discretion by not lowering his sentence to take into account his potential deportation. The panel, with one judge concurring separately, affirmed. The majority held that the district court properly considered the immigration implications, the seriousness of the offense and the other circumstances to rule an A misdemeanor sentence was not too harsh for using another’s Social security Number to obtain employment, and reasonably sentenced Sanchez to one year in jail suspended to probation and did not delegate sentencing to the prosecutor.  The concurrence argued that because the conviction itself triggered deportation regardless of the actual sentence imposed, any error form not reducing the sentence was harmless.

Ouk v Ouk

Husband appealed the child support, property division and attorney fee provisions of the divorce decree. The panel affirmed. It held that the district court properly rejected husband’s argument on business expenses as husband presented no evidence why his claimed expenses were necessary and reasonable and properly calculated husband’s income using sworn statements instead of husband’s live testimony given the adverse credibility determination against husband. The panel affirmed the dissipation award as wife proved she received no benefit from a line of credit open in the parties’ name and husband failed to prove he didn’t dissipate the martial assets. The panel finally affirmed the attorney fee award holding husband had assets to pay and wife did not making the award reasonable under the circumstances.