*1 оnly a decision can conducting be made after jurisdiction therefore lack to consider this hearing competing on the merits for each claim and it prejudice. dismiss without petition. Accordingly, we conclude that
juvenile in prioritizing court erred Foster CONCLUSION adoption petition dismissing Parents' {47 We conclude juvenile petition Grandmother's holding without first prioritized erred when it Foster Parents' hearing on its merits.52 adoption petition and dismissed Grandmoth- competing petition er's holding without first III, BECAUSE THE JUVENILE COURT on its merits. properly order to DID NOT STATE THAT ITS ORDER determine the best interests of children DENYING GRANDMOTHERS MO- placed adoption, courts must hold a hear- TION TO INTERVENE WAS FINAL ing and consider the merits of competing APPEAL, FOR PURPOSES OF WE petitions. We therefore reverse and remand DO NOT HAVE JURISDICTION TO juvenile this case to the court for a hearing CONSIDER IT consistent opinion. with this argues 145 Grandmother Chief Justice DURRANT authored the juvenile court erred denying her Motion opinion Court, of the in which Associate to Intervene in the State's Termination Case. NEHRING, Chief Justice Justice responds GAL that Grandmother failed to DURHAM, PARRISH, Justice and Justice timely appeal juvenile deny court's order joined. LEE ing Grandmother's Motion to Intervene. Specifically, the deny court issued its order
ing Grandmother's Motion to Intervene on 2, 2011,
December but Grandmother did not 6, appeal January 2012,
file her notice of until thirty
more days than later.53 Grandmother
responds that "an order is not final unless it specifies that it is a final order" and that the App 2013 UT language." "December 2 order contains no such GULLICKSON, Catherine N. rdingly, Grandmother asserts Aceo Appellee, Petitioner that, because the court's December 2 order does not state that it purposes is final for appeal, appeal rights her have not been cut Jeffrey GULLICKSON, M. Respondent agree. off.54 We Appellant. 146 But recently as we held in Central No. 20110700-CA. Conservancy Utah Water King, District v. the court's failure to language include this Appeals Court of of Utah. deprives jurisdiction us of appeal to hear the 4, April 2013.
until the court directs that no additional or necessary der is party or a prepares an order
consistent with the court's decision.55 We
R.Arp.
52.
argues
juvenile
Grandmother
4(a) (In
also
53. See Utax
P.
a case in which an
court violated the Utah Rules of Civil Procedure
...,
apрeal
permitted
right
as a matter of
by holding
the consolidation
on Decem-
appeal
notice of
... shall be filed with the clerk
21, ber
days
which was fifteen
after the
days
of the trial court within 30
after the date of
Foster Parents filed and mailed their Motion to
entry
judgment
from.").
appealed
or order
Clarify, Consolidate
and Prioritize Petitions.
period
She contends that this time
did not allow
Sterling
54.
Corp.,
See Giusti v.
Wentworth
required response
for the
time under rule 7 and
¶2,UT
that the court's violation warrants reversal. Be-
35,
BACKGROUND 2008, January part of resolu T2 In as pro divoree property issues in their tion of agreement ceeding, parties reached an they had to deal with the house about how during marriage. The house was lived property, the di premarital but Husband's equitable a one-half vorce court had awarded to based on her maintenance interest Wife during the enhancement of the home addition, marriage. according to the see- (the divorce dec ond amended divorce decree ree),1 to live in the permitted was Wife 22, 2018, parties' January with the home until son, special Dur teenaged who has needs. Jr., Attorney Ap- for R. Weekel Theodore time, responsible for ing this Wife was to be pellant. mortgages, payments on the two making the $2,800 per approximately which totaled Luhn, Attor- Liapis Paul H. and Kim M. five-year period, month. At the end of neys Appellee. for buy required to either out Husband was equity proper in the 50% share Wife's Opinion sale, with the sale ty put up the house ROTH,Judge: specified in the divided as proceeds to be (Husband) notify was to Wife ap- decree. Husband Jeffrey divorce T1 M. Gullickson pursue alternative he intended on a of which peals the district court's order from requires appeal us to con- incorpo- this divorce. Because 1. The divorce decree second amended home, regarding refer rates the settlement terms decree, amended we the second sider only simply parties' as the divorce decree. governs to it and it the terms of otherwise (6) prior January six months A. Property Real Modification "Iwlithin 2018." home, Regarding T6 explained Wife thаt because she had been unable to find full- T3 The divorcee decree also awarded Wife locally, time work she longer could no keep primary physical eustody of the son and current on the mortgage payments. She had parent-time par- awarded to Husband. The employment found Virginia, however, at agreed suspend parent- ties her brother's retail store and was time, planning to however, after Husband and the son move,. represented that she had locat- By par- were involved in an altercation. ed and potential sereened two willing renters agreement, ties' the son was to receive $3,300 pay per rent, month in more than counseling and Husband would refrain from enough to cover the two mortgage payments. exercising parent-time pending a recommen- Alternatively, proposed she that Husband as- dation therapist from the the son was responsibility sume paying mortgages ready to resume visitation with Husband. January until 2013 and that he could rent out therapy The son's September ended in himself to cover expense. but Husband was not notified that he was entitled to resume and he did objected T7 Husband *5 not seek to resolve the issue with the court rent the property, asserting that while Wife gave until Wife notice that she intended to equitable interest, he, had an Wife, and not move from the state. At the time of the was "the owner of the and [Wife] hearings before the commissioner and the right does not have the to rent property." the mid-2011, district judge Husband objected Husband further to Wife's alterna- any had not had visitation with the son since proposal tive that the burden paying of the November 2009. mortgages be shifted to him in advance of January date, the option period a May T4 In petition Wife filed a to approximately nineteen months. Husband modify the divorcee decree and a motion for asserted that proposal would consti- orders, temporary requesting that Husband's permanent tute a modification of the divorce option buy to out her interest or sell the decree and seemed to position take the that a house be accelerated so that she could relo- trial or hearing required was to Virginia cate to with the son. In the alterna- issue, resolve the not simply a proceeding tive, requested she permitted that she be to addition, before the commissioner. Hus- rent out the home in order to be able to fulfill argued band that rule 106 of the Utah Rules obligation her pay to the mortgages. Wife of Civil Procedure temporary limits orders in explained that she unemployed had been modification proceedings to support, child since fall 2010 and had been unable to find custody, parent-time, precluding thus the result, suitable work in Utah. As a she had changes interim that sought Wife in the di- underpaid May mortgage payments by vorce decree's responsibility allocation of for $1,500. about responded Husband with a mortgages. generally See Utah R. Civ. countermotion, seeking temporary a restrain- 106(b) P. (explaining that the sought "decree ing order prohibiting leaving Wife from to be modified during remains effect son, state with the a determination that Wife pendency petition of the modify]," except [to contеmpt was in failing for pay the mort- respect with support, to child custody, and gages decree, required by and, as if Wife parent-time orders, may which be modified in relocate, were allowed to reduction of his cireumstances). the interim under certain $4,000monthly alimonyobligation. par- The The disagreed commissioner that the cireum- ties' motions were set hearing before a stances created a need for modification of the domestic relations commissioner. divorce decree because he did "any- not see thing in the decree that would not allow I. The Commissioner Proceedings opportunity [Wife] thfe] to rent the home." T5 At the before the commission- Accordingly, the commissioner offered Hus- er, parties band the choice of accelerating called no option pre- witnesses but sented their proffer only. evidence sell the home allowing Wife to rent $2,800 totaling when his mortgage payments mortgages. paying the continue home and increased to alimony payments had been decision commissioner's
Although assisting $4,000 purpose of for the a month to be submit- a recommendation amounted home with the son. to remain in the court, Wife he ordered Husband to the district ted commissioner, did for reasons that he The alterna- the two between an election to make certify make explain, not or otherwise hearing, did days fifteen within tives contempt on the issue of a recommendation be- prior to the that occurred date court. to the district court. district fore the D. Other Issues Relocation B. Wife's {10 trial reserved for The commissioner parent-time, regard to T8 With alimony reduce his ob- the Husband's failed to establish had asserted have au- it did not ligation, explaining required harm" irreparable "immediate alimony thority 106 to reduce un rule the decree temporary modification modify. petition pending resolution of immediate her to move 106 to allow der rule R. The son. See id. ly Virginia with their commissioner also recommended attorney fees. their own 106(b)(1)(B) bear (authorizing a court to "order was based on to This recommendation ... temporary mоdification party had act- conclusion that neither irreparable harm court's an immediate address the situation "wasn't ed in bad faith because ..., modification serves provided something contemplated in the decree and peti the child" while interests of the best done now" to accommodate commissioner needs to be modify pending). The tion to inability appropriate work. to find argument that the Wife's disagreed with *6 temporary modification a constituted move Objection the Commission E. Husband's to that Wife 106 and recommended under rule er's Recommendations receive and that Husband to move be allowed recom according to the schedule parent-time hearing, filed Following the Husband (GAL), by ad Litem the Guardian mended objection ree- written to the commissioner's essentially pro the schedule followed which court, in in the district accor ommendations 30-38-37.2 See Utah Code section vided in 101(k) Rules of with rule of the Utah dance (LexisNexis § Ann. 80-38-37 Code Utah 101(k) Civ. P. Civil Procedure. See Utah R. (Lexis 2011) (current version at id. Supp. "[olbject[ing] to (exрlaining procedure the for 2012)) minimum (providing Supp. recommendation").3 commissioner's Nexis parent visitation when one guidelines essentially argu objection The reiterated from the resi than 150 miles moves more hearing. made at In ments Husband decree). in divorce dence identified home, addition, regarding the Husband ex that had pressed concern commissioner Contempt C. in the option-provided included a third allowed him in decree-that would have sought to have Wife held divorcee Husband T9 equitable interest as an mortgage buy to out failing to make a full Wife's contempt for requiring Husband to alternative to either May alleged that payment in 2011. allowing to rent the home to Wife deliberately failed to seek suitable work sell Wife mortgage payment obligation. cover her that had in Utah. He further asserted Wife that he response the commissioner's order manage to why she could not not demonstrated significant parent-time to the minimum for is not actually a recommendation for 2. The GAL made precise- parent-time presented that did nоt in summer 2011 for review. issues statutory parent-time ly comport re- with the appears to quirements. That recommendation 1, 2012, (k) April been subsection has 3. As of accommodating Wife's move have been aimed at made a 101 and has been removed from rule relationship nurturing with Hus- and band, the son's rule, R. Civ. P. 108 separate rule 108. See Utah The GAL which had become strained. ("Objection Commissioner's Recom- to Court parent-time beginning fall anticipated that mendation."). statutory schedule. 2011 would adhere to the statutory from the The recommended deviation days put choose within fifteen to either quently determined during the summer of 2011was not in the son's best up house for sale or allow it to rented be Wife, Husband filed a interest "Notice of Election and ordered the to work with Protest," therapist Virginia Under in which he develop parent- "renew[ed] his objection moving had schedule [commissioner] no forward. The court time power to force to accelerate the [him] terms declined to rule on request Husband's to hold of the" decree but nevertheless in contempt pay "elect[ed] to Wife for failure to the mort- gages sale, because the commissionerhad not cer- property list the under the under tified the agreed issue. The court standing with the pay is still [Wife] liable mortgages until such time as the commissioner's recommendation to reserve requested sold." Husband decision on modify alimony hearing to responsi that, determine who would be time, until trial and indicated at that if the Husband could seek any payment mortgages reimbursement of ble for property was listed for sale and to address expenses he had incurred in the interim for home, maintaining his concerns about paying commissioner's an- mortgages, thority marketing to accelerate the divorcee decree's sale the home for sale. The court $6,000 option effectively abrogating while awarded attorney fees. Hus- option simply buy the decree appeals out band from the district court's orders objection An regarding interest. was mortgage payments, the home and parent-time, scheduled before the contempt. distriсt court. Proceedings
II. The District Court
ISSUES AND STANDARDSOF REVIEW
brought
112 Husband
witnesses
to the
{14 "A trial court's resolution of a
objection hearing based on his "understand-
party's objection to the recommendation of a
ing
parties]
going
present
[the
were
commissioner is one of law. We review con
evidence ... as well
argument."
as oral
He
clusions of law for correctness." Dent v.
admitted, however, that
present-
he had not
Dent,
280, 282 (Utah
870 P.2d
Ct.App.1994).
any
ed
of the evidence that he now wished
subsidiary
We review the
determinations
present
objection
at
at the
necessary
according
to that resolution
to the
*7
hearing
commissioner,
before the
by proffer
appropriate
standard
to the issue.
or otherwise.
The district
court denied
115 Husband first contends that the
put
witnesses,
Husband's
on
ex-
in responsibility
shift
mortgage pay
for the
plaining
parties
that the
"bring
should
issues
ments and upkeep of the house constituted a
before the commissioner[on
the com-
which]
modification of the divorcee decree that can
missioner makes recommendations" becаuse
not be made
temporary
the limited
the district court
is not a forum where a
authority
order
granted
by
to the court
rule
party may "bring in
things
new
that were
106(b) of the Utah Rules of Civil Procedure
by
not considered
the commissioner." The
may only
but instead
be
following
made
explained
court
that to do otherwise "would
evidentiary hearing, essentially a trial.
"In
inappropriate
contrary
be
and
to the whole
terpretation of a
procedure
ques
rule of
is a
commissioners,"
having
idea of
proceed-
and
tion of law that we review for correctness."
arguments
ed on the
of counsel.
Arbogast Family Trust v.
Crossings,
River
13 The district court decided to enforce
¶
LLC,
40, 10,
2010UT
rule
{19 First,
limited Hus-
the commissioner
a minor
that relocation of
asserts
dure. Wife
allowing
to rent out
choices to
Wife
band's
30-3-
by
Code section
Utah
governed
child
sale,
listing
home for
property
particular
rule or
of a
applicability
37. The
subse-
accepted Husband's
the district court
reviewed for
of law
question
statute is
(under
protest)
to sell
quent election
Roman Catho
v.
Colosimo
correctness. Cf.
commissioner nor
Neither
home.
25, ¶
City, 2007 UT
Lake
Bishop
Salt
lic
of
option that
with an
provided
Husband
11,
appli
that the
(explaining
temporarily that arrangement and parent-time of a modifi tion of the during pendency parent-time hearing, at "an immediate denied an address he was proceeding cation no carving presented out evidence but would have harm" which he irreparable and distribution).5 it in and that was for no such harm exception there was such stay in Utah. See Utah interest the son's ruling [ the court's vacate therefore We 106(b)(1)(B). R. Civ.P. the home for sale place ordering Husband the mort responsibility for assume and to court, however, district 127 The maintenance, upkeep. and gage payments, analyze intention to move with did not Wife's time hearing, at which a remand We instead conducted rule 106 but the son under question presented on may be evidence 30-3-37 analysis under Utah Code section aris "compelling reasons are whether there Statute). governs (the Rule 106 Relocation change in and material ing from a substantial emergency ad regarding orders temporary make modification cireumstances" а motion to parent-time while justments of appropriate. of the house treatment decree's In pending. See id. modify a decree is Whitehouse, 790 P.2d Whitehouse See words, only if applies one rule 106 other citation, (Utah (emphasis, Ct.App.1990) existing modify the custo seeking to party is omitted). marks quotation and internal a decree. dy provisions of parent-time entitled to reimburse Husband Whether addressing the relocation orders Permanent he has incurred expenses ment for hand, gov are parent, on the other of one July home since maintaining the The Relo Statute. by the district court the Relocation erned been order has reserved "moving relocation as Statute defines cation be might properly and later resolution speci the residence miles or more from the evidentia- conjunction with considered Ann. decree." Utah Code fied in the court's hearing, At that hearing modification. ry on 2011) (cur 30-3-37(1) (LexisNexis Supp. evidence, § any legal au may offer Husband (LexisNexis 2012)). Supp. legal version at id. regarding the rent arguments thority, and modify parent- receiving motion to legal Upon of that evidence or effect and factual parent's inten arrangement due to one beneficial time authority that he thinks relocate, issue, "may ... schedule including his contention the court tion to claims on this of reloca remedi ... to review the notice give rise to contractual that the facts 80-3-87(8), tion," ap "make § should consider and must The district court id. es.6 arguments regarding these and merits of orders applicability propriate time, appropriate for this parent-time transportation," and it is not id. at that costs for 30-3-387(8)-(5). instance. making in the first determi § court to do so In these nations, must consider a number of the court II. Relocation factors, parent's including "the reason for the relocation," difficulty "the additional costs or challenges next the district Husband exercising parent-time," parents to both the commissioner's recom- adoption of court's court considers neces and "other factors the allowed to relocate be mendation that Wife 80-8-87(4)-(5). § A sary Id. and relevant." particular, com- Husband with their son. often raised at this natural concern failed to demonstrate plains that Wife is in the best interest rule is whether relocation irreparable harm" that "immediate briefing, argues appellate tempo- 6. In his addressed the issue of 5. The have consider the "authori- court did not the district pro- rary context of a modification in the orders apparent presented. from his It is not ties" he authority ceeding only of rule 106. using to refer to he is "authorities" brief whether of whether a do not reach the issue We therefore legal precedent or to certain evidence authority might under its have the divorce court had not been court excluded because it district equitable pow- continuing jurisdiction broad presented We need to the commissioner. temporary circum- *10 solutions to ers to fashion however, issue, because Husband this resolve require appear immediate atten- stances that present opportunity to his evi- new will have a though have arisen the circumstances tion, even authority legal at the any and relevant dence proceeding. in the context of a modification evidentiary hearing on remand.
1021
curiam) ("If
the child.7 If the court determines that relo
(per
generally §id. The court also abuse of discretion for the court not to hold heard from the GAL and Husband's counsel when, such a hearing during the commission arrangement that such an would be in the proceeding, er he and Wife had expressed son's best interest and accorded with Hus- competing views on moving whether Virgi parent band's desire to the son. The court nia was in the son's best interest. then feasibility cоnsidered the of such an arrangement and determined that Husband's argument Husband's is based on two employment with a commercial airline would cases that he support position, claims but facilitate the transportation son's between his he identifies the page cases without citations son, parents. When the who was then six- any or description analysis or of their facts teen, cooperate refused to parent- with the holdings. 24(a)(9) See R.App. Utah P. arrangement, time the court him interviewed (requiring appellant an give "contentions person order, and amended the explaining and reasons" for position his or her that are that "it would not be in [the son's] best supported by specific pertinent citation to interest at this time ... [to] visit with [Hus- legal authority); v. Division Morford ordered, however, The band]." Servs., Family Child & 285, ¶ App UT permitted Husband be participate in 11, 241 P.3d (explaining appellate counseling, son's goal with reinstating courts will not arguments consider that "con statutory parent-time. of nothing sist[ ] more than bald citations to authority
129 Because briefing any dеvelopment fo without of that propriety cuses on the authority of the court's analysis [or] order reasoned based on Statute, (second rule not the Relocation authority" he original) alteration in (citation has failed to adequately challenge the basis quotation internal marks omit ted)). court's decision. See Benns v. Career Even if the briefing were more ro Office, 362, ¶ 2, Serv. Review App bust, 2011 UT however, particular under the cireum- 7. The 2012 version of the "necessary Relocation Statute are making ap relevant" to an specifically identifies the "best interest of the propriate regarding parent-time order arrange primary child" as a determining factor in wheth- parent ments when the custodial relocates. See appropriate. er relocation is 30-3-37(3)-(4)(LexisNexis § Utah Code Ann. 2011). id. Supp. 30-3-37(3)-(5) (LexisNexis § 2012). Supp. The The ordinarily best impli interest the child is version, which was in effect at the time of by any proceeding involving cated custody and proceedings, these specifically does identify parent-time, including proposed relocation of the child's best considering interest as a factor in parent. generally custodial See Grindstaff objection request, to a relocation but it did Grindstaff, 261,¶ 4, App 2010UT 241 P.3d365. require the court to consider "other factors" that *11 hearing that Husband evidentiary grant the that case, conclude we would of this stances nonetheless, motion; in his requested had not err. did the court objection the brought witnesses to Husband Hus- proceeding, commissioner the 32 At included not witnesses hearing. Husband's testimony any witness proffer did not
band he had property issues only on the witnesses testify regarding the to any witnesses or call request for an in the identified this attributed Husband interest. best son's sister, represent he who hearing but also to his counter- delay responding in to Wife's prepared speech pathology expert ed as not did motion, that because Wife explaining were better testify the Utah schools to that the days prior to until two response file her than Vir needs to handle the son's equipped commissioner, he "didn't hearing the before objected to Husband's ginia's schools. Wife per- follow-upwith" certain to a chance have on issue may witness on the relocation proposed and who the son had evaluated sons who First, moving "[the to she asserted to establish two bases. been able have evidentiary hearing interest. to the son's best not in for an Virginia was whole to a continuance orally requested before that was not Husband ... new evidence present documentation with the record supplement contrary the whole the commissioner him an therapist and to allow from the son's and mo process of matters recommendation potential a second to interview opportunity by the to be heard counter motions tions and witness, experience profession and whose Second, asserted that commissioner." the disclosed at were never with the son sister, witness, had not seen the Husband's continuance, de- opposed the hearing. Wife years and had not been son for four Hus- delay contributed to nying that her ad professionally qualified to to be shown asserted, preparation; she lack of band's district special needs. The the son's dress any ef- rather, had not made Husband declining to objection, court sustained therapist with fort to communicate witness be from Husband's relocation hear deposi- scheduled previously had canceled present evidence proposed to cause Husband witness. The commis- with the second tion commissioner presented to the that he had not for a rule on Husband's motion sioner did not .8 made, and the time it was continuance at ruling again once affirm the district court's not raise that issue 134 We Husband did because, circum totality the merits. of the parties went on to address under stances, the dis are not convinced that we requested an evidentia- then 33 Husband declining abused its discretion trict court conjunction with his written ry hearing in newly-disclosed witness. hear Husband's recommenda objection to the commissioner's 58, ¶ 13, Bayles, UT Bailey v. See However, subject tions. appellate court (allowing an P.3d 1158 but was not the relocation issue requested he record). any аpparent basis affirm on property real recommen the commissioner's present the testi had not offered to Husband dation, be the issue of who would specifically any witness at the mony of relocation mortgages if responsible payment for of the commissioner, he and when re before for sale and Hus property were listed objec evidentiary hearing in his quested an au concerns about the commissioner's band's tion, only real identified he sale thority accelerate the divorce decree's the relocation had failed to mention issue and abrogating option effectively while In addi subject request. as the simply buy out issue option the decree to tion, previously identified end, had not did not In the the court Wife's interest. change since adopted of circumstances Supreme been a substantial Court has since 8. The Utah recommendation," in which the commissioner's Utah Rules of Civil Procedure rule 108 of the judicial "may, in the interests regularize process objecting case the court to recom- Utah R. Civ. economy, new evidence." consider relations commission- mendations a domestic According 108(c). declining to rule er in the district court. rationale P. The court's evidence, to track the testimony witnesses seems "any by proffer, hear Husband's whether rule, rule 108 provisions new but because commissioner{,] exhibit, to the presented proceedings, these in effect at the time of judge" was not presented to the unless the shall not be apply discretion standard. we the abuse of offering party has can demonstrate that "there
1023 arguing that he had established Wife's con- proposed expert to the court or to produced witness he at the time tempt. of the hear- The district court refused to consider ing, he had not submitted her curriculum contempt because the issue had not been resume, appar- vitae or and the witness had certified. Husband now contends that be- ently not seen or evaluated the son in four objection cause he raised an to the commis- Further, years. identify Husband did not his recommendation, sioner's "the [district еclourt request unresolved for a continuance of the duty was under a to consider the merits of hearing testimony commissioner to obtain on objection, regardless his of whether topic present this as a basis for his to [clommissioner had certified the issue or proposed during objection witness not." hearing. 188 Rule 6-401 of the Code of Judi $35 Thus, recognize while we cial Administration parameters defines the of ordinarily evidentiary an pre is the a domestic relations powers commissioner's resolving ferred mechanism for disputes responsibilities. Among other things, a child, see, about the best interest of e.g., duty commissioner has the to "conduct hear Montano v. Third Dist. Court Cnty. of ings parties with and their counsel for the (Utah Lake, Salt Ct.App. 934 P.2d purpose submitting recommendations 1997), particular under the cireumstances parties and the court." Utah R. Jud. case, this persuade Husband has failed to us 6-401(8)(C). Admin. The «commissioner is the district court abused its discretion required then to "make recommendations on by declining testimony to hear witness on the all issues under pretrial considerаtion at the relocation issue for the first time at [hearing] and submit those recommendations objection hearing.9 to the 6-401(2)(K); district court." Id. R. summary, 136 In Husband has neither 6-401(2)(D) ("Court see also id. R. commis addressed the basis of the district court's sioners shall have the following authority: ruling regarding Wife's relocation nor con ... Make recommendations to the court re vinced us that the district court abused its garding any issue ... in domestic relations in declining discretion to hold . any cases at stage of proceedings."). hearing. We therefore affirm the court's addition, should the commissioner deter relocation order. mine that a "appear[s] matter require hearing before the district judge," he Contempt III. authority she has the duty Finally, challenges Husband the dis- "[clertify directly those cases to the district trict court's refusal to contempt consider his 6-401(8)(B). court" for resolution. Id. R. against claim Wife. explains Husband that he Thus, a commissioner generally required is "provid[ed] an affidavit ... had [Wife] either to consider an issue and make a rec May, failed to make payment on the ommendation to the district court as to how mortgage" first and that Wife admitted that it should be certify resolved or to the issue so, she had failed to do but the commissioner directly to the court for resolution. nevertheless certify declined to it and instead "reserved" the issue. objected Here, the commissioner nei ther ruled on the issue of certify, commissioner's decision not alleged 9. The circumstances here were unusual and have therapist to work with the son's objection further hearing. Virginia evolved since the At attempt in an to rebuild their relation- judge July the time of the ship before the parent-time might so that resume in the 2011, Husband had not visited with the Although son since future. neither the record nor the per parties' stipulation. November 2009 briefing And include the parties' outcome of the ef- shortly approval after the court's Virginia of the commis- therapist forts with the to reestablish sioner's parent-time, recommendation that Wife and apparent son be it is that Husband had not Virginia allowed to relocate to parent-time and that Hus- had with the son for a considerable reinstated, band's be the son appeal refused amount of time when the was filed. Fur- ther, subsequent visit with his father. After a hear- the son has now resided and attended ing, Virginia year school for more than a the court determined and a visitation was not in the son's best interest at that time and approaching age advised half and majority. Attorney Fees IV. to the court it nor certified
contempt *13 decision without reserved but resolution attorney pur requests fees T41 Husband It doing so. is reasons for explaining on the Code section 30-8-3 suant to Utah judge discretion of certainly within issue. See Wilde property modification real on an postpone the decision to commissioner (Utah Wilde, 438, Ct.App. P.2d 444 v. 969 so, to do for reasonable it is when issue 1998) 30- (explaining that Utah Code section requires the best decision example where to award attor permits the district court 3-3 reasonably or resolution evidence additional proceeding). It is ney in a modification fees cir developing yet unresolved or on depends fee us to consider a appropriate for Whipple Plumb & R. See A.K. cumstances. how stage proceedings, at this award Constr., UT Aspen 1999 Heating v. ing & ever, for remanding the issue when we are ("Trial ¶ 11, have 87, 518 courts 977 P.2d App party and neither has further consideration be managing the cases in discretion broad Rather, on the merits. yet prevailed their with we will not interfere them and fore attorney fees may consider the district court discretion."); an abuse of absent decisions generally (requir remand. See id. issue on 2009) (Oth Dictionary 11 ed. Black's Law attorney in a modifica ing award of fees its discretion that a court abuses (explaining based on evidence of proceeding tion to "be sound, reason it fails "to exercise only when receiving spouse, the financial need of the able, decision-making"). Such dis legal spouse pay, and the ability of the other necessary to informed and effective cretion is (cita requested fees" reasonableness of the decision-making at both the commis judicial omitted)). quotation internal marks tion and court levels. District the district sioner аnd may adjust the amount doing, the court so to consider have discretion courts likewise appropriate. as previously awarded to Wife decision upon a commissioner's issues which in order previously been reserved has through requests the court 142 an award of move cases Wife
expeditiously Plumbing & Whipple A.K. & R. system. See attorney appeal. fees she incurred on ¶ 11, 518; 87, App P.2d trial has Heating, 1999 UT "In actions where the court divorce ¶ 5, Taron, App attorney receiving 2009 UT fees and the Pitt awarded cf. ("[The responsible issues, court gen trial we spouse [prevails] P.3d 962 on the main efficiently forward carrying trial] as erally appeal." [the .and on Stonehocker v. award fees ¶ possible 11, 11, consistent with fair expeditiously Stonehocker, as App 176 P.3d 2008 UT jus thoroughness administering (citation (alteration original) ness and inter (second (citation original) omitted). alteration deny tice." quotation nal marks We omitted)). But quotation instance, marks however, and internal in this be court has the discretion while a district cause we cannot conclude Wife is certified, that has not been consider issue ap party the main issues on prevailing on authority provided us with no Husband has Rather, peal. prevailed on the reloca required proposition that a court is for the while Husband succeeded on his tion issue do so. evidentiary hearing to an to determine claim treat whether modification of decree's Instead, if Husband believed that the 1 40 appropriate. The or ment of the house is had no reasonable basis for commissioner and the relocation are the ders on house issue, contempt reserving decision on the appeal, each primary issues raised on judge remedy was to ask the then his signif carry the relative claim seems to same a recom- order the commissioner to make totality in the of what icance when viewed certify contempt, on the issue mendation seeking. therefore con party each was We court, why explain re- to the district or to comparative result was essen clude that serving appropriate. was decision Lund, 2010 UT tially a draw. See Olsen v. demand, request, but not that the could ¶ 12, (explaining that a App 246 P.3d issue in the first instance. We consider the receiving purposes of at party prevails for the court's decision to de- therefore affirm "party at torney only when that has fees issue of cline to consider the non-certified considering victory, comparative tained contempt. victory what a total would have meant argument review because the was not reas serted, party each and what a true draw would look preserved, and therefore not at the (citation quotation level). like" and internal marks juvenile court omitted)). result, As a we decline to make T45 Court commissioners are court em an award of fees. ployees important that fill the role of "as sisting] the judiciary in the exercise of its CONCLUSION judicial power," undoubtedly which increases *14 [ appropri- 43 We reverse and remand for efficiency and judicial effectiveness of the proceedings ate modification in accordance Smilowitz, process. See Holm v. 840 P.2d with this deсision. affirm the We order with 157, (Utah Ct.App.1992). A commission regard contempt. and Fol- authority er's necessarily expansive is not as lowing hearing, the modification the district as that judges, of Article VIII amounting to may attorney court award fees on the home adjunct differentiation ... between "Itlhe disposition appropriate. issue as Wife's re- fact finding plenary judicial responsibili quest attorney appeal fees on is denied. (internal ty." quotation omitted); Id. marks VIII, 1; see also Utah § Const. art. Utah Judge STEPHEN L. ROTH authored this (LexisNexis $ Code Ann. 30-8-15.3 Supp. Opinion, in Judge which MICHELE M. 2012); (2012) § id. 78A-5-107 (describing CHRISTIANSEN concurred. powers functions and of domestic com missioners); City Ohms, Salt Lake v. Judge Z. part JAMES DAVIS dissented in 844, (Utah 1994) P.2d 846-55 (analyzing the part, opinion. and concurred in with constitutionality of the court commissioner DAVIS, Judge (dissenting part system). Regardless of appro whether it is concurring part): priate or desirable present to first evidence commissioner, to a applying preservation respectfully 1 44 I dissent from Section II rule proceedings to the before a domestic majority opinion and concur аs to all relations impermissibly commissioner ex Although other sections. the district courts pands the function of the court commissioner "have managing broad discretion in the cases system by barring litigants access to the them," before A.K. Whipple Plumbing & R. regardless of the merits of their cases. Heating Constr., Aspen & App 1999 UT BLM, 83, ¶15, BAC v. 2001WY 30 P.3d ¶ 87, 11, 518, I believe it was none Cf. 977 P.2d ("[The district independent court [must] inappropriate theless for the district court ly findings review[ ] the evidence and [sub here to refuse Husband an hear mitted to a court commissioner] to reach its ing preservation on grounds. The relation requirement informed decision. espe This ship between court commissioners and dis cially necessary in not, custody child trict cases be courts is and never was intended to be, right cause [tlhe to associate with one's im relationship similar to the between the district appellate courts and family courts.10 Cf. mediate is a liberty.... fundamental 74, ¶ 11, Holgate, State v. 2000 UT Accordingly, 10 P.3d a court parent must afford a ("As rule, general meaningful notice and a opportunity claims not raised to bе heard may deny before the trial court before it can parent custody not be raised on M.S., appeal."); In re 781 P.2d his or her children.... 1290-91 [Dlistrict courts (Utah Ct.App.1989) ... (explaining, authority in an have no appeal abdicate their deci juvenile from the sion-making responsibilities court's de novo review of on these funda juvenile decision, (fifth commissioner's that mental issues to others." alteration in raising argument juvenile original) citations, before the com (emphasis, and internal preserve omitted)). missioner did not appellate it for quotation marks Notwithstanding majority's justify litigants 10. "bring effort to cannot in new [evidence] that ruling, only its reason the by [was] district court de- not considered the commissioner" be- evidentiary hearing nied Husband an was Hus- cause to inappropri- allow otherwise "would be band's contrary failure to first mention the having evidence to the ate and to the whole idea of explained commissioner. The district court commissioners." preser- Coincidentally, imposition of a T46 proceedings before requirement
vation sys- may negatively impact the
commissioner every present litigants by requiring
tem or risk the commissioner
serap of evidence judge. rejected
having that evidence right to have people have "[tlhe
Because ultimately de- and controversies
their cases been vested judges who have by ...
cided constitution," and by the judicial power
with a clear violation of
"[alnything less is law," Holim, 840 and Utah
Utah constitution See- dissent from respectfully I
P.2d at would, on majority opinion II
tion
remand, to hear Hus- direct district the best interest regarding
band's evidence
issue. AppUT 94 Nolin, NOLIN,
Raymond Catherine R. K. Rushforth, Evelyn Rush
Gordon Appellees,
forth, Plaintiffs CONSTRUCTION, INC.,
S & S Appellant.
Defendant
No. 20110663-CA. Appeals of Utah.
Court
April 18,2013.