Utah Court of Appeals vacates alimony award; reverses criminal restitution order; affirms administrative order finding spa workers are employees; and affirms termination of mother’s parental rights, but reversed termination of father rights as to the same two children.

Vanderzron v Vanderzron

Mother appealed the child custody and alimony provisions of the divorce decree and the denial of her attorney fee motion. The panel, with one judge concurring in result, affirmed in part, vacated in part and remanded. The majority held that the requirement that wife live within 25 miles of husband after moving back to Virginia was part of the transition plan which aimed at keeping the parents close enough for spontaneous interaction with both parents, wife did not challenge the determination the move and spontaneous interaction were in the children’s best interests and the district court made clear that modification of living arrangements can be made based on experience and changes in circumstances. It held wife’s constitutional challenges to the restrictions were unpreserved and there was no plain error as there is no binding Utah or federal case law holding a residency restriction violates the right to travel or the right to parent. It vacated the alimony award holding the district court clearly erred in adopting husband’s exert opinion proposal of equal income as wife had significantly higher needs yet bore almost all the shortfall and remanded the case to either craft an equitable split of the shortfall or justify the award using the evidence developed at trail. It held that the district court clearly erred in failings consider the tax consequences of wife imputed income as it did consider tax consequences for husband and this failure appears to have understated wife’s needs and further held that the district court plainly erred in not considering the tax consequences of the alimony award and thus may have unfairly limited the alimony award. It affirmed the imputed income calculation for wife as support of the factual findings can be inferred from the vocational expert report and wife did not raise any issues as to childcare costs at trial. It affirmed the denial of the attorney fee motion both for all fees and for fees incurred on a discovery issue holding the district court properly found the parties had sufficient monies to pay to the fees incurred, the fees were inflated by the parties’ litigation strategy, the fees sought by wife in the discovery dispute were properly denied given the offsetting fees incurred by husband because of wife’s tactics, the fees were inflated by a third party’s conduct and wife failed to comply with the court order controlling attorney fee requests. There was no concurring opinion.

State v Trujillo

Trujillo appealed the restitution portion of his criminal sentence. The panel reversed. It held that Trujillo did not admit abandoning the car which was impounded and impound fees accrued as a consequence, there was no evidence in the record Trujillo stole or abandoned the vehicle, no evidence that Trujillo’s failure to stop caused the impound fees, the presentence report identified no victims and the award can only be supported by speculation.

Aura Spa & Boutique v Department of Workforce Services, Workforce Appeals Board

Aura appealed the Board decision affirming the administrative judge decision that the massage therapists and estheticians at Aura were employees. The panel affirmed holding Aura failed to present any admissible evidence that the workers were independent contractors, the advertisement and questionnaires offered were hearsay and proof the workers had no independent work establishment was sufficient to affirm the order.

In the Interests of A.R. and M.R. (C.S. v State)

C.S. appealed the termination of her parental rights. The panel affirmed. It held that even if Utah Code 78A-6-115(6) unconstitutionally allowed hearsays statements by A.R. and M.R. into evidence, any error was harmless as there was substantial other evidence that the children felt safe in their foster home and their conflicted feelings about being away from mother did not drive the termination decision which the juvenile court based on C.S. drug use and repeated arrest and jailing. It rejected C.S.’s due process arguments holding amendment of the petition to include allegations of an arrest after trial started was proper under rule of civil procedure 15(b) and C.S. was provided time to conduct discovery dn prepare for trial on the allegations; that courts are not required to make credibility determinations for all witnesses and there was no clear error in ruling C.S. was not credible in testifying she spent two weeks in jail for stealing shoes; any error in considering excluded prostitution allegations were harmless as the allegations were used to assess the credibility of C.S.’s testimony about her two week jail term and the termination was based on drug use and criminal behavior; and, while the state was lackadaisical in presenting the case and failed to provide discovery in a timely manner, none of this had any substantive impact on the determination of the case and C.S.’s briefing on the issue was in any event inadequate. It held the termination order was supported by sufficient evidence as C.S. used methamphetamine and alcohol and was unable to overcome her addiction; termination was in A.R. and M.R.’s best interests improved their behavior, academic performance and social skills while in foster care while their behavior deteriorated when given visitation with C.S. and they have bonded with their foster parents who wish to adopt them; the reunification efforts were adequate as the county paid for drug treatment which C.S. left early and C.S. later failed a second round of treatment and the state sought after more intense treatment thereafter and also arranged for counseling, visitation , held appropriate planning meetings and communicated with C.S.; and C.S. received services during the trial which meant services were provided past the statutory 15 month deadline.

In the Interests of A.R. and M.R. (J.S.R. v State)

J.S.R. appealed the termination of his parental rights. The panel reversed and remanded for a new trial. It held the juvenile court abused its discretion in interpreting its order on reunification services to not order reunification services when the plain language states J.S.R. was to receive expedited services, namely domestic violence and anger management classes, once he got out of prison and contacted children’s services both of which happed during the trial as to C.S’s rights, the case relied upon by the juvenile court in its analysis requires services absent determent to the children, and the parties all understood the order to mandate services until the state raised the issue when its case against J.R.S. was in jeopardy .