Kelley v. Kelley

App. 236 2000 Utah Ct. KELLEY, Appellee, Petitioner

Sonia KELLEY, Respondent Appellant.

No. 990711-CA. Appeals

Court of of Utah.

Aug.

BACKGROUND May T2 Sonia and married on subsequently 1980 and had two children. During marriage, Wayne worked industry. Wayne founded Altex construction majority Construction in Alaska and owned a company, Wayne's interest in another DSI. required stays him make work extended home, away during he from which occasional ly apartment. rented an purchase by In of a terms company placed Wayne's per- of another DSI sonal at risk. To minimize this risk assets home, family protect Wayne and divorcee, agreed to transfer title to Sonia So- nia but to live hus- continue individually, Accordingly, band and wife. Sonia and Wayne obtained divorce decree entered on July 1994. provided was This decree Sonia children, primary custody of the

awarded Wayne pay totaling child was month, was "awarded Sonia $1,000.00 per the sum not less than month [Wayne], alimony said years, or until continue for three [Sonia] remarries, statute, or until terminated Among the whichever shall occur first." distributed, property was awarded the Sonia Bountiful, Utah, and two marital residence all other Wayne was awarded automobiles. automobile, per- property, one and his real Maycock, Maycock, Kruse Landa & Ellen sonal effects. City, Appellant. Salt Lake for Thomp- Haskins and Thomas N. divorcee, James C. Following T5 their 1994 Associates, son, City, pre- change & Salt Lake in their Haskins made no Sonia Appellee. relationship living arrangements. divorce cohabit, Wayne and Sonia continued sub GREENWOOD, Judges Before Wayne's ject traveling demands of to the JACKSON, and DAVIS. work, apartment obtaining an which included They did not tell their children or Texas. DAVIS, Judge: community they anyone in the had else {1 relationship Their financial re Respondent Wayne Kelley appeals the divorced. same, Wayne providing mained the with pertaining orders to his relation- trial court's living Kelley. funds "at the same standard ship petitioner Sonia For below, prior entry of the Decree part, had existed to the we affirm reasons discussed They to socialize pro- continued part, remand for further of Divorce."1 reverse attending together, including a Christmas this decision. ceedings consistent with substantially greater the decree. an amount 1. This reflects pay he was ordered to under than the amounts family Specifically, taking a vacation in was unconstitutional. party in 1995, Wayne gave although concluded that the restriction did May In Sonia Clause, Open anniversary indicating he loved her not run afoul of the see card Courts I, years togeth spend another fifteen art. it did violate the wished to Utah Const. er. Operation of Laws Clause. Uniform I, Consequently, § 24. Const. art. suspi- fall of Sonia became Wayne's partial court denied motion for sum- romantically involved cious that judgment. mary Wayne's With assur- with another woman. however, over, relationship ance during The matter T9 was addressed reconciled-until a few Wayne and Sonia trial, bench after which the trial court made spring months later. Sonia findings. Regarding the factual existence Wayne had continued his re- discovered that marriage, findings a common law the court's woman, lationship pre- the other which following: included the Wayne cipitated May 1996 altercation. [Wayne] proposed par- 9. ... that the support subsequently cut off financial for should enter into a divorcee that the ties so sought legal counsel. Sonia Sonia placed in home could be name to [Sonia's] protect potential it from of eredi- [sic] 10, 1996, July Sonia moved to modi- T7 On decree, asserting such decree represented tors.... He that [Sonia] fy the divorce parties going separated were not to be fraudulently was obtained and that "[slince nothing change and that would from how Divorce, entry [Wayne] the Decree of of they had lived before. fully supported family by paying has over $7,500 approximate During Spring sum of 10. of [Sonia] Summer 1994, parties agreed to and did enter support month" but that said had each action, temporary resulting The court entered a or- into a divorcee in a divorce ceased. alia, being day July, der which inter that Sonia entered on the 18th of provided, children, custody Wayne of the make the District Court of Davis Coun- alimony payments totaling ty.... agree- The child Court finds $6,000 month, $5,000 Wayne pay parties and that ment between the was to divorcee temporary attorney July agreement fees. Also on for a non-traditional divorce separate legal only, designed Sonia filed a action to estab- which created a fiction protect parties lish a common between her and the residence of the from day on the the threat effective decree was of creditors. 18, 1994, entered, July and to obtain a di- parties 11. ... Both of the attended proceeding therefrom. This second vorce parenting accepts class and the Court July was with the first. consolidated testimony Marty of Dr. Hood and finds it separate filed Sonia another action during is credible that the intermission Wayne seeking against damages for fraud class, halfway through parenting claims, and other which was likewise consoli- [Wayne] approached her and told her that proceed- dated into the divorce/modification parties going through the divorceethe were ings. only thing a business and that children would never know there was even trial, T8 Before the matter came for going to be a divoree and that there nowas 18, 1997, August partial moved for real need for them to continue to attend summary judgment, arguing that there can the class on how to deal with the children be no establishment of a common law mar- in a divorce situation. He further told her riage following divorcee because no going separa- there was not to be a adjudication such or determination was ob- tion.... year relationship's tained within one required by termination as section 830-1-

4.5(2) of the Ann. Utah Code. See Utah Code 16. Prior to the divorce the standard of (1998). agreed living parties 80-1-4.5 The trial court was one which made, timely respondent petitioner give no determination was but would year pay arrangement concluded that the one time restriction a month to bills This entry period 27. The Court finds that as of the some substantial had existed for July of the Decree of Divoree on time.... they have to re- knew that would [Sonia] entry the Decree Following the marry. day, parties As were was no July, there of Divorcee They unmarried. continued marital relationship parties in the change cohabit, they relationship, continued to arrangements. The living in their they to treat each other as mar- continued they to live the same parties continued ried, accounts, they joint checking had marital prior to the divorce. Title to had personal [Wayne] maintained all of his transferred until after was not residence property at the marital residence. The to the was filed. The title this action parties joint filed income tax returns never transferred. property Kodiak [Sonia) year. [Wayne] the 1994 sent mon- joint parties continued to maintain The ey joint serviced debts. she joint parties filed a checking account. The joint parties The maintained credit cards. return, reflecting that 1994 income tax parties The held themselves out as mar- of the end they husband and wife as were in the area of their domicile Davis ried 1994.[2] to cohab continued County, and in that area of the domicile children, who relations. The it with sexual reputation They being had the married. three and one- that time were nine and held themselves out to their children as told about years age, half were never parties The to married. continued cohabit parents' relationship. any changes in their spouse through and hold each other out as 1994, parties appeared July, the 18. April parties reputa- of 1996. The had a counseling and told the counselor at a class community being tion in the for married only for business this divorcee and all of these actions arise out of a nev- purposes and that the children would consenting parties. contract between two parties were divorced. er know that the Wayne The court further determined that together; parties The continued to socialize $10,000 produce ability had the current to they party together attended a Christmas per month income. 1994, the other out in December each held [ Through findings conclusions its couple. No one in the com- as a married decree, and the new divorce both entered munity the divorceeat that time. was told of (1) 1999, 22, July the trial court concluded: time, respondent During this maintained upon action based fraud must that Sonia's apartment an Texas. (2) fail; parties entered a common "commenced immediate- marriage law which 1995, peti- May [Wayne] sent 20. Di- ly following entry of the Decree of anniversary card in which he tioner an 1994, 18, July and terminated vorce" on her a wish for an- indicated he loved 1996; change ~ that there was a June years.... other 15 de- since the first divorcee of cireumstances part 21. In the summer of of a upon the common cree "based vacation, family traveled to parties" warranting a modification room{,] Mexico, a and had sexual shared The court dismissed Sonia's the first decree. relations. matters, declared for fraud and related suit marriage, of a common law the existence divorce, During period the entire a and modified granted Sonia Divorcel[,] entry the finan- of the Decree property. redistribute first decree to relationship the same and cial remained custody of the The court further awarded [Wayne] provided with funds at the [Sonia] Wayne pay to and ordered children to Sonia living $3,000 same standard of which had existed $2,000 support and per month child prior entry to the of the Decree of Divorce. alimony, alimony. Regarding the per month upon the mar- that "based

the court ordered 2. See LR.C. tion of whether § 7703(1) (1999) ("[Thhe individual is married shall determina- be made as of the close of his taxable year...."). 80-1-4.5(2) (1998) uncon parties from 1980 to Utah Code Ann. riage [Sonia alimony] period for the of 16 entitled to stitutional and that such restriction barred remarries, years time as [Sonia] or until such the determination there existed valid cohabits{,] party." of either Fi or the death Wayne non-solemnized between judgment to nally, reduced constitutionality proper and Sonia. The entry of arrearages that time interpretation presents questions of a statute through Temporary the month Order of law which we review for correctness. See 1999," reflecting credit for February, ¶24, 6, 191; Lopes, State v. 1999 UT $56,151.60 totaling for al Wayne's payments, County, Rushton v. Salt Lake $87,434.40 imony support3 for child 977 P.2d 1201. judgment court likewise reduced Sonia's $35,951. attorney fees of Legislature adopted 14 In trial, moved the court to After Sonia provide section 80-1-4.5 the Utah Code contempt failing pay Wayne find for by recog a mechanism the state will support full child amount of relationship marriage although nize a as a temporary support required order. there was is com no solemnization. This Wayne dispute pay, did not failure to monly a common law mar referred claiming pay. he unable to instead that statute, however, riage. The restricts motion, During hearing on the testi- may time which such a be estab owing fied to substantial debt and that his by providing: lished "The determination or through sole source of income was his em- establishment of a under this see ployment salary Omega Oil at during relationship tion must occur de month. also testified that he was (1), year scribed in subsection or within one previously to the able to contribute following the termination of that relation and the children because he drew Sonia 30-1-4.5(2) (1998). ship." Utah Code Ann. $10,000 per month as a loan from DSI and Englehorn, In Bunch v. P.2d $10,000 per month from the another income Ct.App.1995), plain property. Kodiak The court found that this court examined the Wayne comply that, was aware of and failed to language requirement of that and held temporary with the order. Based on the wish to "those who establish their relation hearing evidence adduced at the and its fac- ship marriage recognized by as a the state trial, finding tual at the court further found must obtain 'a court or administrative order' Wayne ability that to earn had the at least ... year within one of the termination of the $10,000 per historically month and lived "far relationship." (quoting Id. at 920 Utah Code beyond Accordingly, that kind of income." 80-1-4.5(1)(1995)). Bunch, Ann. In be Wayne the court determined that had the year cause no order was entered within one ability comply temporary to order termination, relationship's of the we affirmed by convincing clear and evidence he was the dismissal of the action. See id. at 920- contempt stayed in of court. The court im- 21. position provided begin of sanctions he to payment

make on remain current with Supreme 115 The Utah Court has obligations. Legislature held that has broad discre appeals. bring tion to set time limits within actions, Gaufin, see Lee v. ANALYSIS (Utah 1993), recognized limits to Marriage I. Non-solemnized Statute promote brought when claims can be "suppress legitimate goals stale and fraud first asserts the trial finding court erred in the time ulent restriction claims so that claims are advanced determining appropriate immediately following paragraph, 3. In amount then in the court or- arrears, July in the divorce decree entered dered that shall be "retroactive to this amount the court stated that month by the date of the first Order entered Commis- support and child award com- shall sioner in action." Dillon this Further, mence as of December 1998. in the Wayne relies law and a divorcee. fresh." rebut them is still evidence while Gongales pur in dicta in which the court v. Butler Supply, Inc. Builder's Craftsman overrule, ¶18, 14, distinguish, rather than ported to Co., 974 P.2d 1194. Mfg. 1999 UT sought in however, Supreme Bunch because no divorcee was Court Recently, the Utah ¶ 29 Marriage Gonzales, in In re its decision 2000 UT 28 at announced Gonzalez. See However, n. 7. we can find no for the (plurality Gonzalez, 80-1-4.5, majority proposition enacting of the in section opinion). Gonzales notwithstand create Legislature intended to different supreme court concluded of section 30-1- plain language4 for cases which an estab ing the rules and results Bunch, 4.5(2), sought, court's decision and cases and this lishment and a divorce is "requires sought. time restriction alone is 30-1-4.5's in which an establishment section adjudication petition for filing of a only the now able to this court is somehow Unless year after the termi one contrary within legislation to statutes write new relationship." nation of the divorce, Gonzales offered governing distinction ¶ 48 (Zimmerman, ¶ 30; id. at 28 at see notwithstanding UT meaningless, Gonzalez J., concurring). supreme protestations to the con court's option but trary. Consequently, we have no ¶16 light here Looking at the facts Gongales overruled Bunch to conclude Gonzalez, the trial court we must conclude applies notwithstanding here that Sonia that an es initial determination erred its sought establish the to both marriage was a common law tablishment of obtain a divorce. 30-1-4.5(2). By the untimely under section relationship findings, the continued court's II. Establishment of Common May altercation. Be until

least Law action establish the filed her cause Sonia marriage July it was common Wayne asserts next that we of section 30- within the time restriction well com the establishment of a should reverse 1-4.5(2) interpreted the Gonzalez unsupported by sufficient mon law Consequently, al See id. at court. substance, however, ings.5 find concluding erred in though the court sufficiency Wayne does not assail untimely it did not establishment sufficiency findings, court's but issues, it to reach the constitutional need findings. supporting those "We do evidence partial Wayne's correctly denied motion findings of fact court's not reverse a trial summary judgment on that basis. Young clearly v. they are erroneous.": unless 338; 38, ¶ 15, ¶17 P.2d ac brief, Young, that 1999 UT reply asserts his Gonzales, applics here 52(a); Pennington v. rather than Bunch R. Civ. P. cord Utah (Utah Co., Allstate Ins. sought a common to establish because Sonia according explained: A which is not solemnized 4. As Justice Russon chapter legal a" dismissing and valid if to this shall be not err in Gon- [T}he trial court did jurisdic- petition failure to meet the it zalez's establishes that court or administrative order in Utah Code time limitation set forth tional two consent- arises out of a contract between opinion § Durham's Ann. 30-1-4.5. Justice who: attempt the statute on even to read does not consent; (a) capable giving are language, plain but instead the basis of its (b) capable entering legally a solem- are provisions by attributing simply rewrites its provisions of this under the nized legislature. Although the re- motives to the chapter; conclusion, relating quirement commencement, rather than (c) cohabited; legal proceedings is unusu- (d) rights, duties, assume marital mutually potentially raise constitutional al and could obligations; and scenarios, hypothetical this in certain concerns (e) out as and have who hold themselves case not one of them. is general reputation acquired a uniform and J., (Russon, ¶ 52 Gonzalez, dis 2000 UT 28 at wife. as husband and senting). (1998). §Ann. Utah Code 30-1-4.5(1) neces- Section 30-1-4.5 sets out those factors sary of a non-solem- to determine the existence marriage: nized 1998). Further, findings if Wayne's to determine termination of support payments recently to Sonia. As we weight of the evidence against are the clear erroneous, clearly explained, and thus we view the facts "principles judicata require of res light findings. most favorable to the party seeking that 'a modification of a di Oldsmobile, 892 P.2d See State One voree decree must demonstrate that a sub 1995); Bertoch, change stantial in circumstances has oc Lefavi ¶5, 17, App 2000 UT 994 P.2d 817. decree, entry curred since the not contemplated in the decree Kram itself"" asserts that the court bule, ¶ 13 App 994 P.2d 1999 UT 357 at findings dealing failed to make with the fol (citation omitted); see Ann. also Utah Code (1) lowing spending evidence: time in 30-3-5(3), (7)(g)(i) (stating that in a home wherein another woman Texas jurisdiction continuing changes has to make (2) resided; asking Wayne if Sonia he was custody, support alimony woman; planning marry this other awards)(Supp.1999). testimony regarding reputation as hus given only by wife band and Utah resi remarriage We conclude that doing, Wayne merely reargues dents. In so support payments failure to make and/or his view of the evidence. He has failed to justify cannot Regard alone modification. supporting marshal the other evidence ing remarriage, simply support there is no 80-1-4.5(1) findings court's on the section proposition remarriage for the that se Lefavi, required,6 factors as see 994 P.2d change substantial of cireumstances. Ab ¶ 17, App 2000 UT or demonstrate that explicit support, sent record it is hard to findings clearly Simply were erroneous. imagine remarriage that is unforeseen or not stated, persuaded we are not the find contemplated at the time of the divorce ings against weight were the clear Indeed, virtually every case.7 the divorce evidence. explicitly recognized possibil

decree here ity by providing alimony would "contin III. Modification of the Decree remarries, years, ue for three or until [Sonia] Wayne argues the court erred in statute, or until terminated whichever modifying the first divorce decree because first," added) (emphasis shall occur and see change there was no substantial of circum 30-3-5(8) provides "any tion order of the "[Allthough generally stances. we review party pay alimony court that a to a former modify determination a divorce decree spouse automatically upon terminates the re discretion, for an abuse of insofar as that spouse." death former law, question determination is based on a 80-8-5(8) (Supp.1999) Utah Code Ann. we review it for correctness." Krambule v. added). addition, (emphasis if Wayne Krambule, 357, ¶ 10, App 994 P.2d pay failed to child 210; Toone, accord Toone v. decree, remedy ordered in the Sonia's is to (Utah Ct.App.1998). enforce, modify, original not the decree when 121 The trial court alleged change determined there she has neither nor shown a change was a position parties substantial of in the of circumstances the relevant to her parties' entry Wayne's based on the into a ability pay. common need or example, Wayne pre-divorce 6. For showed his consent to the his conduct and the demands of his marriage by filing joint common law work, a 1994 tax necessarily proposi- it does not rebut the making return, statements to Dr. Hood at the tion that he cohabited with Sonia. there Finally, class, parenting continuing support financial far testimony neighbors showing Wayne original the level ordered in the decree, reputation community Sonia had a in the above Sonia, maintaining joint accounts with continu- being married. ing and sexual Sonia, cohabitation relations with giving anniversary expressing Sonia an card showing remarriage 7. There has been no that years together, love and desire for another fifteen spouse materially the former should be treated failing anyone community to tell in the about respect remarriage different in this than to a the Further, divorce. because main- Wayne's taining apartment party. in Texas is consistent with third v. decree. Wells modify the divorcee court that the trial hold therefore 1 23 We (Utah Ct.App. P.2d decree be- modifying the divorce Wells erred 1994), interpreted sections 30-3- this court change in was no substantial there cause 30-8-5(8) 3(3) that "trial courts and held Rather, original decree cireumstances. temporary equitable powers to award in full effect. continues modify." Although alimony petition to on a to allo purported court %24 The the denial of the Wells court affirmed way by property between cate petition sought an increase modification original decree modification both that the trial court alimony, it determined it is decree. While pursuant to the second temporary award and able to make a decree, original modify the inappropriate to petitioner's failing to consider erred brought property is free to allocate the court here, Sonia Id. at 1040-41. Likewise needs. law during the common acquired into and/or modify divorce decree. Conse sought to approach that must marriage. The court Wells, explained in the court had quently, as decision with our in accordance allocation temporary authority to make a equitable (Utah Ct.App. Burt, P.2d 1166 Burt reversal is not warrant order of 1990). ed on this basis.8 properly categorize first court should [The part the marital property as parties' V, Alimony property of one separate or as the estate Wayne reversal of seeks Next, party presumed to Each the other. month, $3,000per argu alimony award separate her all of his or entitled to be findings, court made insufficient that the percent of the marital fifty property and by unsupported suffi findings were and the simply than enter But rather property. determining "In whether to cient evidence. decree, then con- the court should such a amount, setting the alimony and in award exceptional circum- sider the existence needs of the court consider the trial must stances.... earning capacity of the recipient spouse; Hall, 1172; P.2d Hall v. at accord

Id. obligor ability of the recipient spouse; (Utah Ct.App.1993). Because the and, length of provide support; spouse to pursuant to the de- property court allocated Rehn, App marriage." Rehn v. dissolving common law cree 306; Ann. see Utah Code ap- systematic Burt applying the without 30-3-5(7)(a)()-(iv) "If (Supp.1999).9 these exceptional cireum- addressing proach or ' considered, not "we will have been factors stances, the order part we reverse alimony unless award the trial court's disturb findings in accor- further remand for as to inequity has resulted such serious with Burt. dance abuse of discretion."'" manifest a clear Childs, Childs Support Temporary Order IV. citations). (omitting Ct.App.1998) argues next the duration of first address alimony 127 We temporary imposing a erred court pro The Utah Code award. that time because at support order and child for a vides, "Alimony may not be ordered no determination there had been years number of longer than the duration a common and Sonia entered unless, any time marriage existed establishing see- that the However, her addition alimony, prior to termination sought to Wayne, also marriage to Sonia ond adding the fur- effective sup- 30-3-5 became section retroactive child the amounts for 8. Because See Utah alimony divorce must consider. based on the second port and ther factors temporary appear 30-3-5(7)(a)(v)-(vii) same as (Supp.1999). to be the the § decree Code Ann. impact arrearages, the we do not address order requirements were not these additional Because on the order for modification the reversal of of here, period we do during the relevant in effect that amount. Wilde, 969 P.2d Wilde v. them. See not consider 438, (UtahCt.App.1998). 442-43 1999, 3,May approximately six months On 9. to case, this an amendment after the trial 180 extenuating justify respect

finds civeumstances that reverse its order in this and "remand entry findings the of further addressing alimony payment longer period the for a of 80-8-5(7)(h) time." Utah Code Ann. extenuating whether cireumstances exist Rehn, (Supp.1999); App see also 1999 80-8-5(7)(h)." UT Rehn, satisfy to section 1999 ¶ ¶ 041 at 14. App UT 041 at 14.

128 The trial court found that Sonia 129 We further conclude the court's Wayne and entered a common law required findings supporting additional 18, began July immediately on 1994 alimony amount of the award were sufficient. needs, of the divorce decree on The court finding considered Sonia's following entry monthly expenses Blair, 885 P.2d 791 her reasonable to be Whyte that date. v. (Utah 1994), $5,000 month; supreme per capacity, earning court held that her find ing produce she was to when a non-solemnized able an income of is estab $1,498 month; per Wayne's ability to 30-1-4.5, lished under section the actual du pay, finding ability relationship, produce ration of he had the to predating such es tablishment, recognized. is See id. at 798- although expenses over were $10,500, Hence, portion upon substantial related entry 94. of the order estab here, Wayne second home which was lishing to be sold. Wayne and Sonia has not shown findings clearly these are er July were remarried on thereby unsupported by roneous as sufficient evid terminating her to alimony entitlement under ence.12 Accordingly, the court did not the first decree.10 Because the court made abuse in determining its discretion cireumstances, finding extenuating no $3,000 per appropriate month is an amount of may time for which the alimony court order alimony. 80-8-5(7)(h) by is limited section to the dura tion of the marriage, common law to wit: five Attorney VI. Fees years.11 Consequently, findings the court's inadequate were alimony an seeks reversal of the period years. award for a of sixteen attorney supported We thus fees by award as insuffi- provided, 10. The first decree "The 'egregious Plaintiff is ment would include such miscon hereby bribery awarded the sum of judge jury, not less than duct' as of a or fabrica Defendant, alimony $1000.00 month as from tion of evidence counsel. Inc., v. by Pfizer, years, (C.A.8, said to continue 1976), for three or until Corp. Intl. 538 F.2d Rectifier remarries, the Plaintiff or until terminated 180, certiorari denied 429 1040, U.S. 97 S.Ct. statute, whichever shall occur first." See also 738, 50 751, L.Ed.2d or the prevention 30-3-5(8) opposing party fairly presenting his case. (Supp.1999). Code Ann. (C.A.9, 1969), 955, Keys v. Dunbar 405 F.2d agree position We supple- with Sonia's in her certiorari 880, denied 396 U.S. 158, S.Ct. supporting efficacy mental brief of the first generally, 138; see, L.Ed.2d Restatement surrounding decree that the circumstances (1942). Judgments, Sections 118-124 obtaining of the first decree do not amount Moore, 3-82-19, Moore v. App. No. 1983 Ohio analyses fraud on the court. The better reasoned 12995, (Ohio 23, App.3d, LEXIS at *3-*4 June of the issue make a clear distinction between 1983) (citation omitted); see also Davis v. Parr misrepre- fraud on the court other fraud or ish, 595, 131 Idaho 1198, may sentation which occur in the context of a ([Flraud the court will be found proceeding. upon only presence tampering of such with the adminis "[The [fraud term on the court] as used in justice suggest wrong against tration obtaining as to judgment relief from must be nar up protect safeguard the institutions set rowly only type construed to embrace public." (quoting Compton Compton, itself, conduct which defiles the court or fraud 328, 1175, (1980))); Idaho 612 P.2d Sar perpetrated by officers of the court so Wentworth, County gent Bank v. 547 N.W.2d prevent judicial system as to from function (N.D.1996) Godin, Godin v. 168 Vt. customary deciding manner of (1998). 725 A.2d presented impartial cases in an manner." Ser zysko (C.A.2, 1972), v. Chase Manhattan Bank terminating 11. The divorce decree 699; the common Konigsberg Security 461 F.2d Natl. entered 22, 1999. (S.D.N.Y.1975), July Bank 56 F.R.D. 439; Armour (N.D.Iowa 1972), v. Nard Company Again, (D.D.C.1969), fails to marshal the evidence to 610; FRD. Lockwood v. Bowles 625; erroneous, 46 FRD. Moores Federal findings clearly Practice show the are (1975). Paragraph Examples merely 60.33 reargues his view of the evidence. See ¶ 17. justifying judg- Lefavi, fraud on the court relief from App 5 at

181 ings comply that he was able to with the to award attor- findings. "The decision cient pri- temporary ability because he had the thereof rests order the amount ney fees and $10,000 per to and of the trial earn at least month his- marily in sound discretion torically beyond "far that kind of in- trial must base lived court court. However receiving come," evidence of the strongly supported by the award on evidence ad- contempt hearing duced at the and at trial. need, payor spouse's financial spouse's Specifically, Wayne testified to an income ability pay, to and the reasonableness $6,000 Childs, Omega P.2d at 947 from Oil alone of month requested fees." 967 pattern characterizing and he confirmed of omitted). (citation loans, part previously income as which he [ dispute Wayne does not 31 support contributed to the of Sonia and the regarding the appropriate findings made the children, ability showing greater to earn a fees, that attorney So- reasonableness of Consequently, argu- reject income. we his fees, or that pay to nia was unable finding ment that the court erred ability Wayne had "a substantial court found contempt in of court. Instead, Wayne relies to earn an income." erred argument that the court on his earlier finding had an income of CONCLUSION

in that he argument failed per month. Just as that [34 although the trial We conclude the find- Wayne did not demonstrate because finding in court erred the time restriction of erroneous, this one. clearly so must unconstitutional, section 30-1-4.5 under the court did not Consequently, we conclude the subsequent Supreme Court decision awarding attorney in its discretion abuse Gonzalez, correctly re it deter- fees. mined that Sonia's action to establish a com- Further, timely. mon law Contempt of VII. Court support evidencewas sufficient the court's Finally, Wayne argues there determination that and Sonia did support evidence to was insufficient fact enter a common law that com- contempt "The finding of of court. court's day entry the divorce menced the same contempt party in decision to hold a court first decree of the trial rests within the sound discretion "[ Nonetheless, we further conclude appeal be court and will not disturbed determining the court erred there had action 'is so unreason unless the trial court's change of circumstances been a substantial capricious able as to be classified decree. following entry of the first divoree arbitrary, of discretion.'" or a clear abuse nonpayment previously Remarriage 014, ¶8, and/or Marsh, App Marsh v. support ordered cannot alone constitute Bartholo (quoting P.2d Bartholomew v. (Utah 1976)) change of There- mew, substantial circumstances. cert. 1999). (Utah denied, fore, part P.2d "'To find of the order allo- we reverse way cating property by of both modification contempt, the court must find from clear pursuant original decree and to the knew convincing proof that the contemnor decree, findings we remand for second ability required, comply, what was had approach set forth accordance with willfully knowingly failed and re Burt, P.2d at 1172. Burt. See Burt v. (quoting Kun fused to do so.'" Id. at 110 gler peti- Additionally, pending O'Dell, resolution Ct. modify, the court was within its dis- tion App.1998)). entering temporary or- cretion in Wayne argues the evidence was der. ability he had the insufficient to show order-Le., that he comply with the court's Wayne failed to dem- Finally, 1 36 because findings were payments in the court's factual income to make onstrate had sufficient erroneous, challenges clearly to the temporary order. accordance with the court's awarded, fees, attorney Wayne merely reargues his view of amount Again, Nonetheless, contempt ruling necessarily fails. None- the court's find- the evidence. (com- marriage my theless, a new intact. Under anal- entered solemnized because Sonia law) Kelleys ysis, di- if either of the wants to dissolve marriage at the time the first mon entered, matrimony, remarriage the those bonds of he or she would voree decree was prescribed try- in right to from the do so the manner without her terminated ing to the courts of this state. marriage. Consequently, when award- delude first (common law) ing from the second a divorce by ordering erred alimo-

marriage, the court CRITIQUE OF COMMON-LAW ny period that exceeded the duration of for a MARRIAGE STATUTE that second History of Marriage I. Common-Law the trial Accordingly, we reverse there were court's determination marriage" T41 is a misnome "Common-law allowing changed cireumstances modification marriage probably r.1 Common-law did decree, remand for further find- of the first England, in the of the com not exist home distribution, ings regarding property concept in "English mon law. The arose alimony under the cur- limit the duration of ecclesiastical courts which administered can years. rent decree to five law, English rather than common- Crawley, Honey law courts." B. Is the John Pamela T. 138 I CONCUR: Marriage: A moon Over Common Law for GREENWOOD, Presiding Judge. Viability Consideration Continued JACKSON, Judge (dissenting): Doctrine, Marriage the Common Low (1998/1999). Cumb. L.Rev. The {39 Legislature In invited Utah Regina House of Lords concluded in v. Mil marriage common-law into institution of lis, (1848-44), Rep. Eng. that common state a means of correct the homes of this marriage recognized law had never been prob certain "man the house" welfare Despite England. ruling by criticism Ann. lems. See Utah Code 80-1-4.5 academicians, some historians and see Craw (1998); Gonzalez, In re ley, supra, principle at 402 n. of stare ¶28, 21, (stating "apparent 1 P.3d 1074 aim decisis leads me to conclude that the issue prevent ... [of was to the exclusion statute] Thus, has been settled as matter of law. alleged spouse's an law' 'common income minimum, Ann. Code 80-1-4.5 applicant government when an for benefits (1998) should not be labeled as a "common- fraud"). made, preventing was thus welfare marriage" statute. Better or labels Blair, 1994), Whyte 885 P.2d 791 terms would be "unsolemnized" "noncere- Supreme dealing the first Utah Court case ' monial" statute. marriage" with the new "common-law stat ute, dutifully accepted obligation its [ 42 recognition mar- unsolemnized develop to common-law "on a case- courts, English riages ecclesiastical by-case 794 n. I basis." Id. at 8. write colonies, American and the several states has separately critique trekking the wisdom of equitable England basis. medieval case-by-case path further down this and con expanding American frontier it was virtu- Legislature seriously clude that our should ally impossible couples wanting marry pointing consider the involvedadministrative persons to find authorized to issue agencies courts a different di perform licenses ceremonies. See Craw- rection. ley, supra, at 408. Common-law Further, dispose par- I solving would of this viewed as one means of these procedural ticular case based on the rationale that difficulties id. New York Kelleys original recognize obtained their divorce decree the first state unsolemnized Thus, Reed, through marriages. I fraud on court. would See Fenton v. 4 Johns. curiam). decree, prior leaving original (N.Y.Sup.Ct.1809) (per By vacate the Further, advisedly marriage," my digest I use the term and with some reluc- I shall also. short tance, apt description as it is not an quickly is meant summarize the evolution of Nonetheless, doctrine. because statute and marriage, provide common-law not a treatise. most of our cases use the term "common-law marriage of "on doctrine common-law a case- century majority a of the nineteenth end unsolemnized, Blair, 791, by-case Whyte long-term basis." v. recognized states (1994). 794 n. Crabtree, 8 F. De unions. David sexual See velopment, Recognition Common-Law 273, 275 n. 12 Marriages, 1988 Utah L.Rev. II. Unintended Breadth of Common 1981, states, recog (listing thirty-four Marriage Law Statute marriages). nizing common-law legislative history 45 behind Utah's $43 there, mar But from "common-law marriage common-law statute reveals a nar began to die a riage" row, fell into disfavor singular preventing focus: welfare America, In the im natural death. modern money fraud to for save the various adminis marriage present pediments to ceremonial agencies involved. In re trative See Mar disap long Gonzalez, 28, life on the frontier since ¶ 21, riage 1 communication, Transportation, peared. 1074; Crabtree, Development, David F. Rec ognition Marriages, readily are legal Common-Law 1988 hosts of administrators help wanting marry. 273, available to those During L.Rev. Utah 280-81. debate, adopted Accordingly, when Utah its statute legislators expressed concerns about the new 1987, only a dozen states still acknowl marriage po common-law statute's effect on Now, relationships. lygamous edged Concern was also Utah is common-law only Ann. 40- one of ten. See Mont.Code expressed regarding stale claims to marital (1999); Code Ann. 80-1-4.5 1-403 Utah merely peripher status.2 But all these were Gullatt, (1998); Ala. Campbell's Adm'r v. 43 Moreover, al considerations. there was no (1869); 57, Klipfel's Klipfel, Estate v. 68-69 question debate of how about substantial 26, (1907), 40, 41 P. 27-28 McFar Colo. 92 marriage might existing affect common-law McFarland, 565, 269, Towa 2 land v. 51 N.W. family marriage law and an institution Judd, 73, (1879); v. 60 Kan. 2738-74 Shorten might intrude in other substantive areas of Canard, 286, (1898); v. 55 P. 287 Warren 30 Legislature the law. The and administrative 514, 599, (1911); Knecht v. 120 P. Okla. mainly saving agencies were interested an Knecht, (1918); 410, 676, A. 261 Pa. estimated welfare benefits Co., 337, (esti Holgate Rys. Elec. 47 R.I. United marriages establishing 800 common-law (1926); Berger Kirby, A. mating marriage that each common-law es (1913). Thus, Tex. 153 S.W. $1,080). tablished would save about centuries, with Crabtree, in two the American "affair" supra, at n. 43.3 marriage legal common-law has shifted injected the 146 This statute has responsibility dependent for and financial raged has judiciary into debate which away either from or women and children However, Legis I believe the two centuries. state, depending towards the on whether forum than the courts for lature is a better in fa doctrine of common-law implica legal policy debating the social Dubler, R. Note: vor or not. See Ariela Kandoian, generally tions. See Ellen Cohab Governing Through Low Contract: Common itation, Marriage, and the Common Law Century, 107 in the Nineteenth Life, 75 Geo. Possibility a Shared Moral (1998). Yale L.J. ("The (1987) question posed L.J. what to make of by the cohabitation cases is 4 44 One could claim that Utah is now first couples, requiring in a a license and cycle restoring state vanguard in the of a new ceremony, neither but society. who have obtained common-law to American However, arising likely that come before a court claims it seems more Utah's But, relationships.... granting a reme guard. statute is an anachronistic rear must, dy, thus formal supreme court establishes because we both only socially approved develop is not and this court have tried to improving repealing Anyone 3. interested legislators If debated would no doubt today, should read statute the common-law express its effect on same-sex rela- concern about predicting many of the this excellent discussion tionships. having problems with the statute. we are now (1998). §Ann. This was done rights and duties Code 30-1-4.5 relationship sexual subsections, by creating laundry alternative, list of five type informal attaching; Dubler, exist."); R. marriage may also Ariela litigation with six elements. See id. each Through Contract Com Governing Note: dispute. a source of There element becomes Nineteenth Cen Marriage in the mon Law fore, Legislature keep if the wants to some (de 1885, 1898 tury, 107 Yale L.J. marriage, simpler form of common-law power scribing ] between the tension[ "social might the scheme with fewer elements be (ie., mar marriage as a containment tool of all, approach.5 better After the essential obligations) power as riage as a set of its marriage elements of common-law are actual (Le., marriage equalizer as a bestow- a social ly relatively simple: required "all that is is rights)"). legal er of social that there should be an actual and mutual legal policy social and 147 Aside the agreement to enter into a matrimonial rela marriage, very by tion, issues raised common-law parties capable in law of mak between sensibility the fiscal questions real about contract, by a consummated such Legislature the doctrine remain. The has cohabitation as man and wife or their mutual capability to oversight the and means audit assumption openly of marital duties and obli of common-law mar whether the numbers Marriage § gations." 55 C.J.S. 10 riages by administrative fiat and the created (citations omitted). justify process. expense Has incurred this «[ Second, phrase the final of the statute monetary savings goal been at the initial a cause for concern. It states that the is also tained? Is of man-in-the-house containment relationship "may proved be under the same maintaining rationale for fraud a reasonable general rules of evidence as facts in other expected the statute? Utah courts be Should 80-1-4.5(@) cases." Ann. Utah Code spending to continue effort and resources to (1998). general language This results a develop marriage law? common-law case justify preponderance Does the end the means? of the evidence standard. Hansen, See Hansen v. I now turn to a brief examination of (Utah Ct.App.1998). in- This low standard appellate language the of the statute and our people marriage recog- vites more to sue for opinions specific disputes to be about they improved nition have an chance because being generated. Strikingly, none which are However, winning. the historical eviden- fraud. them involves welfare tiary required convincing standard clear and III. Review of Utah's Common-Law purpose higher evidence. The stan- Marriage and Case Law Statute pursuit dard was to limit of both stale and C.J.S,. Marriage fraudulent claims. See 55 First, I am concerned that the com (1998) ("A mar- claim of common-law plexity problems. of the statute itself creates riage regarded suspicion is and will be provisions The of section 30-1-4.5 show the closely especially scrutinized where one of narrowly Legislature tried to tailor the lan purported spouses is deceased and guage types limit num and thus the claiming survivor a financial interest." relationships qualify bers of which would (footnotes omitted)). equal marriages. higher evidentiary of solemnized This The Administrative Office of Courts could marriage, wife. Like other a common-law any survey the trial courts to determine the number only by can be terminated death or expense adjudications involving common- party seeking prove divorce. A a common- marriage. Perhaps many law there are which claim must establish his clear appealed. are not convincing evidence. Crawley, Honeymoon John B. Is the Over for 5. Alabama has a three-element scheme: Marriage: Common Law A Consideration First, parties capacity must have the Viability Continued the Common Law Next, marry. they presently agree must (1998/1999) Doctrine, 29 Cumb. L.Rev. relationship. Finally, they enter the (footnotes omitted). judge, author, a asserts marriage; is, must consummate they this scheme works well in the Alabama way gain public live in a as to must such courts. recognition they living are husband and a one- criminal case to relieve the need for establish common-law mar hurdle would also riage polyga between a man and one of his limitation. year time wives, might prose mous so man be Third, I another concern about note Green, bigamy. cuted for See State No. silent, i.e., may who file a the statute is (Utah 2000). Apr. Dist.Ct. I petition to create a common-law mentioned so an admin assume this was not Our courts also entertained sev- agency instigate legal recogni challenges constitutionality eral to the istrative can and, relationship. particularly, one-year At first statute tion of the marital time blush, ought establishing relationship. to be left to either limit for marital it seems this But, cohabiting persons. one or both of the Englehorn, Bunch 906 P.2d 918 Ct.App.1995), putative we held that the wife object is otherwise. This statute statutory opening other failed silence leaves to establish a common-law marriage recogni complaint year because third to initiate she filed within one couple. relationship proceeding get tion for the Potential after the ended but did not insurers, heirs, parties adjudication year. third include credi order within one See Later, Supreme id. at 920-21. the Utah tors, collectors, prosecutors, tax and those relationships who contractual with the Court held that the time limitation of section See In re Gonza cohabitants. "requires only filing peti- 30-1-4.5 of a ¶¶ les, 1-4, 28, (plurali 1 2000 UT P.3d 1074 adjudication marriage tion for within one ty) (involving year home intervention issuer of after the termination of the relation- Gonzalez, policy putative ship." in wife's owner's insurance 2000 UT 28 at 130. This attempt marriage being to establish common-law issue is still contested with some fre- Blair, 791, insured); Baker, Whyte quency. v. 885 P.2d 792 See Greaves v. No. 990689 (Utah 1994) (Utah 2000) (certified 14, (involving participation Ct.App. July of insur to and Court) company putative pending Supreme (addressing ance case which hus Utah marriage band tried establish common-law filing year, issues of whether within rath- one insured). adjudication, obtaining er than is sufficient Open time and whether limitation violates 1 52 A review of cases to date reveals Utah Constitution); Courts Clause Utah Smarr statutory marriage that Utah's common-law Smarr, 150, App slip op. (May 2 v. 2000 UT at implicated has now several other scheme 2000) 25, (unpublished memorandum deci- substantive areas of the law. Issues touch sion) Bunch); (concluding overruled Gonzalez ownership ing on the and transfer of real and (Mar. Clark, 2, App Clark v. 54 personal by puta property have been raised 2000) decision) (unpublished memorandum Hansen, spouses. tive 958 common-law year of (holdingpetition filed within one rela- (seeking at com P.2d establishment of tionship's termination not have been should divorcee, marriage grant mon-law dismissed), granted, cert. No. 20000276-SC requesting custody, sup child orders on child (June 2000). 21, distribution); port, property v. Walters (Utah Walters, 64, Ct.App.1991); 812 P.2d Critique of Conclusionto Common- IV. (Utah 504, Layton Layton, Marriage in law Utah Olearain, Ct.App.1989); Mattes v. 759 P.2d (Utah Ct.App.1988). English of Lords ruled €54 The House Common- nev- long ago law also intersected with the that common-law has instance, part American criminal law. For a convicted child er of its common law. Most already experimented this argued sex he had a common-law states have abuser experience, Based on their all but to his victim's mother. See State doctrine. 1998). Johnson, repealed ten have common-law case, great experi- recycle not this In that the defendant tried to secure Utah should well probation allowing probation under a statute ment. is not Common-law afflict, remedy steppar for ills in limited cireumstances for a child's suited as corrective arena, And, particularly currently, administrative ent. See id. at 1067-68. law allegedly man-in-the- county prosecutor has filed a motion a when the disease is circumstances, one of that under certain Legislature has fraud. Our house welfare fraud, after-discovered relief will be should-prescribe a dif- which is ability to-and This granted." Id. at 64 S.Ct. at 1000. remedy for welfare ferent administrative uni- to fulfill a equitable rule was "fashioned side effects other harmful fraud without injus- versally recognized correcting need for the law. areas of cautiously, It should exercised tices." Id. be THE COURT6 FRAUD UPON demands, power the occasion but when wielded "without hesitation" has been {55 Kelleys told the court have now interposed ... equity "devitalize[ ] can be decree was a collusive that their 1994 divorce 997 at judgment[s]." Id. S.Ct. trial court found that pretense. The divorcee, setting aside a collusive legal fiction agreed-upon divorce "created quo court restores the "status ante" protect the residence of the only, designed to illegal prevents enforcement of the transac- of creditors." A the threat from Corp. v. tion. Martina Theatre Schine "(ain pre- imaginative creation or a fiction is (2d Theatres, Inc., 278 F.2d Chain represent actuality does not but tense that Recent, Cir.1960) Cases, (citing to Clean- Heritage American invented." has been Prevents Husband Hands Doctrine (2d ed.1985). Dictionary In other Proper- Setting Collusive Divorce and Aside words, Kelleys' divorceewas a lie. Fraud, ty Settlement Induced Wife's Moreover, they made the court an €56 (1954)). divorcee Harv. L.Rev. 1079 deception. in their unwitting participant fraud, deceit, collusion, per- proceedings, " " Thus, they the court itself 'defile[d] jury "wrongs against are the state and prevented judicial system perform upon may fraud the court" which the state impartial ing "in the usual manner its task" v. Par- raise on its own motion. Parsons Moore, adjudicating cases. 12 James W. (1912). sons, 607, 907, 602, 122P. 909 40 Utah (3d § 60.21[4][a]l Moore's Federal Practice Further, 60(b), Rule Utah Rules of Civil Pro- ed.1997). Kelleys ground The for divorce cedure, expressly states that it has no effect creditors, an artifice to defraud not power a court's inherent to set aside a on genuine case of irreconcilable differences. upon judgment procured through "fraud fact, reconciled; they they fully were were 60(b). R. P. court." Utah Civ. Thus, complete agreement. they in were not legally to a divorce decree. Accord entitled collusion, there is as in this T58 When ingly, I would vacate the 1994 decree and case, parties likely neither of the is to come legal restore them to their former status- propose they that forward and to the court explain wife. I that of husband and will now jointly perpetrated wrong some on the sponte legal for this sua action. so, gave Kelleys we court. Even supplemental in chance to address this issue May Sponte

I. Issue Be Raised Sua Predictably, that the briefs. each concluded upon may upon other had committed fraud the court. 157 Fraud the court be raised respective weigh heavily in sponte appeals sua court Their conclusions the court may support my position. In Toscano v. vacate a lower court decree on this Com Revenue, Moore, 441 Internal F.2d 980 ground. See James W. Moore's missioner of (3d (9th ed.1997). Cir.1971), prob the court addressed the Federal Practice 60.21[A][f] process of re equitable power inherent existed at lem of who is to initiate the This " Surely viewing upon fraud the court: it common law. In Hazel-Atlas Glass Co. v. Co., 238, preservation integrity that of the Hartford-Empire 322 U.S. 64 S.Ct. cannot be (1944), 997, judicial process always upon fraud-upon-the- L.Ed. 1250 must wait case, Supreme diligence litigants. public welfare court the United States Court public justice judg agencies noted the tension between the rule demands equity ... ments are final and the "rule of impotent they always not so must be be upon differently 6. Fraud is defined generally Parrish, 141, 144- See Pace of divorce fraud the context than traditional (1952). 273, 247 P.2d 274-75 cases, of several elements. proof require Analysis TII deception helpless mute and victims Hazsel-Atlas, (quoting fraud"" Id. at 985 162 Marriage is much more than a mere 1001). 246, 64 322 U.S. at S.Ct. "public contract. is a institution of explains why 159 This statement we universal concern [whose] dissolution af sponte in If should act sua this case. we do the right only fect[s] not of the husband and not, expect we cannot collusive subversion of persons." wife but of all other 2 Joel P. And, process exposed. legal to be if not Bishop, New Marriage, Commentaries with, exposed expect and dealt we can similar Divorce, (1891) (foot Separation § conduct the future. omitted). such, public note As "the becomes party effect a the proceeding." Id. at Finality IIL. of Initial Divorcee Decree reason, § 481. For this agree cannot T 60 Courts and commentators caution that marriages dissolve their own for conve narrowly id.; Blair, this doctrine is to be construed nience. Whyte See preserve finality 1994) ("A judgments and to couple may not 60(b)(8) overlap avoid with Rule of the Utah enter simple and exit a financial convenience."); Roylance, Hilton v. Rules of 25 Utah Civil Procedure and its federal count erpart.7 Indus., Broyhill Furniture 69 P. (stating mar Inc. v. Corp., Furniture F.3d riages may not be dissolved at "the mere Craftmaster (Fed.Cir.1993); Great Coastal Ex pleasure intention contracting par ties"). press, Inc. v. International Bhd. Team precisely happened That what (4th sters, Cir.1982); 675 F.2d 11 here. Wright, Charles Alan Arthur R. Miller & T Kelleys agreed 63 The through Kane, Kay Mary Federal Practice and Pro "paper they artifice of a divorcee" would (2d ed.1995). cedure salutary "This shield themselves from creditors but continue general springs rule from the belief that holding children, themselves out to their fam- society by put most instances is best served ilies, friends, neighbors, public and the as ting an litigation...." end to Hazel-Atlas wife and husband. The trial court entered Co., Hartford-Empire Glass Co. v. 322 U.S. findings Kelleys the carried out their 238, 244, 64 S.Ct. 88 L.Ed. 1250 deceptive planned. as The court scheme (1944). But, a judgment final has never Kelley Marty found that Mr. Dr. told Hood regarded "been completely immune from only the divorce "was thing a business Moreover, impeachment." Id. Kelleys the and that the children would never know." engage have chosen to in ongoing litigation. party The court also found that "neither They are able to do so because divorce expected property aspects of the divorce actions the trial continuing juris court "has implemented" they to be valid or and that subsequent diction to make changes or new "continued to and hold out cohabit each other custody orders for the of the children and spouse[s]"in community. their ... [and] maintenance and for property distribution of obligations Karren, In64 Karren v. 25 Utah for debts as necessary." is reasonable and (1902), couple conspired P. 465 in a similar 30-8-5(8) (Supp.1999). Utah Code Ann. way. The husband told his wife that he Further, 1 61 the record indicates that nei- would obtain a default divorce to induce his remarried, Kelleys ther of the has convey nor has father to title to a homestead any new his refused to do if he remained mar- any child been born as issue of father So, party no third promised would be seri- ried. See id. at 466. He that after ously Thus, by vacating deed, affected the decree. obtaining they the divorce and would remarry. agreed perceive See id. The wife to this I respect finality little need to their divorce decree. stratagem appear and did not or defend the 60(b) independent judg- The text of Rule makes it clear that fraud ... action to set aside a upon the court determinations are made outside upon ment for fraud court." Utah R. Civ. P. the bounds of Rule 60. The Rule states it 60(b). power "does not limit the of a court to entertain App. 242 husband did not 2000 Utah Ct. id.

divorce action. See mar- bargain, the collusive part fulfill Utah, Appellee, Plaintiff STATE another, expecting a child ried 466, 467. The first wife. See id. his new the decree. to vacate Karren then sued Mrs. HOUSTON, Defendant M. Ned supreme court held id. at 466. The See Appellant. by any of the obtained a decree of divorce upon the court: a fraud following conduct is 990393-CA. No. (2) (1) suppression of parties, collusion facts, testimony. id. or false Appeals of Utah. Court case, grant court declined Karren remarriage Aug.10,2000. the husband's because of relief expecting a child he and the fact that Here id. at 466-67.

with his new wife. See either equitable no concern

we have such has remarried and Kelleys. Neither children are involved.

no other regarding findings court's

T65 The trial Kelleys' brings them within conduct upon the court. of fraud

Karren definition

Indeed, their of divorce they obtained decree by sup- agreement

under a collusive

pressing truth. have invoked In cases when courts upon powers remedy fraud equitable court, forms: granted has taken several

the relief a new

setting judgment permit aside

trial, judgment, altering the terms of the judg- restraining the beneficiaries of the any whatever taking benéfit

ment from the relief has it. But whatever form cases, result has particular

taken in the net has

been the same: where situation manner, has, in

required the court some judgment.

devitalized Hartford-Empire

Hazel-Atlas Glass Co. 997, 1001, Co., 64 S.Ct. U.S. omitted). (1944) (footnote In this

L.Ed. 1250

case, remedy appropriate is to vacate

decree.8 Alimony Vacating Section V. decree relieves the courts divorce spun following My untangle issues having colleagues' effort to to consider further by opinion: addressed the main issues However, is commendable. Kelleys "Oh, Kelleys what a were not entitled to it. Marriage Statute Section I. Non-solemnized tangled we weave, web we when first of Common-law Section II Establishment practice (1771-1832). John Sir Walter Scott deceive." Marriages (16th the Decree Section III. Modification of Quotations 378:13 Bartlett, Familiar ed.1992). Temporary Support Order Section IV.

Case Details

Case Name: Kelley v. Kelley

Court Name: Court of Appeals of Utah

Date Published: Aug 3, 2000

Citation: 9 P.3d 171

Docket Number: 990711-CA

Court Abbreviation: Utah Ct. App.