Gullickson v. Gullickson
2013 UT App 83
Utah Ct. App.2013Background
- Gullickson (Husband) appeals district court modification of the divorce decree regarding the marital home after the five-year plan; Wife sought relocation with the son to Virginia and possible rental of the home to cover mortgages.
- The divorce decree granted Wife a 50% interest and allowed her to live in the home for five years starting Jan 2008 to accommodate the son's needs.
- The decree provided end-of-term options for Husband to buy Wife's share or for the home to be sold, with specified timing.
- Husband had his parental time suspended after an incident; therapy was involved and visitation resumed only under therapist recommendation.
- In May 2011 Wife petitioned to modify to relocate or rent the home; Husband counter-moved to block relocation and sought alimony adjustments; hearings before a commissioner addressed real property, relocation, contempt, and attorney fees.
- The district court ultimately enforced Husband’s earlier election to sell, approved Wife’s relocation to Virginia with the son, and awarded Wife attorney fees; Husband appeals those orders and asks for an evidentiary hearing on the home modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could modify the home disposition without an evidentiary hearing | Gullickson—modification of real property requires an evidentiary hearing under rule 106 | Gullickson—commissioner decision permissible; interim relief allowed under rule 106 | Vacated; remanded for a full modification hearing |
| Whether relocation to Virginia was properly decided under the Relocation Statute | Gullickson—relocation required immediate irreparable harm and/or an evidentiary hearing | Gullickson—Relocation Statute governs; best interests considered; rule 106 not controlling | Affirmed relocation order under Relocation Statute; no abuse of discretion |
| Whether contempt issue was properly handled given certification status | Gullickson—court should consider contempt since commissioner reserved | District court could decline to hear non-certified contempt issue | Affirmed district court’s refusal to consider contempt (not certified) less remand direction |
| Attorney fees on remand for home disposition | Gullickson—fees should be reconsidered under modification standards | Fees to be decided after modification hearing; may adjust prior award | Remand allows district court to reconsider attorney fees after modification hearing |
Key Cases Cited
- Whitehouse v. Whitehouse, 790 P.2d 57 (Utah Ct.App.1990) (compelling change in circumstances required for modification)
- Osborne v. Osborne, 260 P.3d 202 (Utah App. 2011) (change in circumstances; modification hearing required)
- Benns v. Career Serv. Review Office, 264 P.3d 563 (Utah App. 2011) (preservation/consideration of issues on appeal)
- A.K. & R. Whipple Plumbing & Heating v. Aspen Constr., 977 P.2d 518 (Utah App. 1999) (trial court manage discretion; evidentiary procedures in modification)
- Montano v. Third Dist. Court for Cnty. of Salt Lake, 934 P.2d 1156 (Utah App. 1997) (best interest/evidence in child custody matters)
- Ohms v. Salt Lake City, 881 P.2d 844 (Utah 1994) (courts’ role in domestic relations matters; evidentiary considerations)