Scott v Scott

Former wife sought review of the Utah Court of Appels decision that past cohabitation can support termination of alimony under Utah Code 30-3-5(10). The Court reversed. It first held that former husband’s argument that the statutory issue was not preserved and the court of Appeals erred in addressing it was insufficient to affirms as preservation is a discretionary judicially created doctrine and former husband failed to demonstrate lack of plain error, extraordinary circumstances or other error and there were eatuemtns both ways as to wehtehr or not to address the issue. It held that under the plain meaning of the phrase “is cohabiting” in 5(10), alimony may be terminated only if cohabitation is happening at the time of the motion to terminate is filed and the Court of Appels erred in concluding is means cohabiting is, was or has been occurring at time of trial. It also rejected the argument that legislature intended to treat remarriage and cohabitation equally as the different treatment is not absurd and parties can protect themselves by including a provision in the divorce decree to allow any cohabitation to terminate alimony. It finally held that former wife was not entitled to attorney fees under Utah Code 30-3-3 as this was an action to terminate alimony not establish or enforce alimony.

McElhaney v City of Moab

City appealed the district court decision reversing the denial of McElhaney’s conditional use permit and ordering the permit granted. The Court vacated and remanded with instructions. It first clarified precedent and held that when reviewing a district court decision of an administrative decision, review is of the district court decision not the administrative decision and this serves the important purposes integrity of the appellate process, extending the same procedural protections as in other appeals and incentivizing parties to raise their arguments before the district court and further noted this approach is consistent with the Court’s certiorari procedures and recent case law in the environmental law field. On the merits, the Court held that City’s council failed to make any findings of fact or conclusions of law and thus it was impossible to determine the rationale for the denial, in the land use context the “substantial evidence” standard is term of art and thus the administrative law approach controls, under the standard appellate reviews not possible without written findings and conclusions and this approach has been adopted by the Utah Court of Appeals and other state courts. It finally held that the district court erred in parsing the record instead of remanding for entry of findings and thus vacated the order here and remanded with instructions to remand to the City’s council.