Posted: April 5, 2005
Utah Rules of Civil Procedure
URCP 007. Pleadings allowed; motions, memoranda, hearings, orders, objection to commissioner’s order. Amend. Prohibits orders embedded in other documents unless permitted by the court.
URCP 047. Jurors. Amend. Clarifies situations in which multiple parties share peremptory challenges.
URCP 101. Motion practice before court commissioners. New. Establishes procedures for motions to a court commissioner.
URCP 106. Modification of divorce decrees. Amend. Describes conditions in which the court may enter a temporary order in an action to modify a divorce decree.
One of the proposed changes to URCP Rule 106 seems to conflict with Utah Code Ann 78-45-9.3(4). The statute provides that the effective date of a child or spousal support modification shall be the month following service on the parent whose support is affected. The proposed change for rule 106 provides that the modification may be made effective to the date the petition is filed.
The statute is based on a legal rationale that an existing child support order stands until a person is put on notice that the order may change. The notice requirement is deemed satisfied once the person has been served with a petition to modify. Since child support accrues on the first day of the month [UCA 78-45-9.3(1)], the month following service is a consistent and obvious starting point for a new support order. It is also consistent with Ball v. Peterson, 1996, 912 P.2d 1006, wherein the court held that a modified child support order could not be retroactively applied beyond the date notice of the petition was given to the adverse party.
The rule would allow a court discretion to make the modification retroactive to the date the petition was filed. This date may differ from a service date by up to 120 days. There may or may not be a basis for allowing other provisions within a modification proceeding to predate by up to four months the date a person is served and thereby put on notice. At the very least, however, the rule should be clarified as to child and spousal support orders and make them effective the month following the date of service so that they do not conflict with the statute or with existing case law.
I believe that the page limit for summary judgment arguments should be increased again. Many cases are simply too complex to be fully addressed in ten pages. The limit used to be 25 pages; while that may be overly generous, 15-20 pages certainly would not be. We must bear in mind that if we want summary judgment to accomplish its purpose, we cannot create limits to its scope, since it must be able to embrace a case entire rather than merely summarize it. Moroever, requiring another pleading (entailing response and reply as well as possible oral argument) to request further pages is inefficient. I suggest the page limitation on summary judgment motions be raised to 15-20 pages for original memorandum and response, and to 8-10 pages for replies.
I believe that the page limit for summary judgment arguments should be increased again. Many cases are simply too complex to be fully addressed in ten pages. The limit used to be 25 pages; while that may be overly generous, 15-20 pages certainly would not be. We must bear in mind that if we want summary judgment to accomplish its purpose, we cannot create limits to its scope, since it must be able to embrace a case entire rather than merely summarize it. Moroever, requiring another pleading (entailing response and reply as well as possible oral argument) to request further pages is inefficient. I suggest the page limitation on summary judgment motions be raised to 15-20 pages for original memorandum and response, and to 8-10 pages for replies.
I am doing some research on determing Child Support Obligations. More specifically applying imputed income when none of the three criteria were met to legally impute income. Since the order to impute income was temporary and is headed in the same direction for the final divorce decree, can this violation of the law by a judge be one of the conditions to modify the divorce decree and retroactively apply the new child support payment back to the original petition?
I see no reason that Rule 106 should be limited to divorce actions alone. Petitions to modify served per Rule 4 should also be required in other custody and support cases, i.e., paternity, custody and parent time proceedings, guardianships, and separate maintenance.
I agree with John Bowen’s comment that the rule as written is not consistent with UCA 78-45-9.3. Authorizing modification to time of “filing” the petition also runs contrary to the requirements imposed upon the State of Utah by 42 USC 666(a)(9). Indeed, I think UCA 78-45-9.3 is Utah’s response to the requirement of 42 USC 666(a)(9).
I do not understand the reason for including – (b)(1)(A). Is it to suggest that temporary child support orders may be entered without reference to the Utah Child Support Guidelines? If so, I would say that is contrary to UCA 78-45-7.2(1) that provides that the guidelines apply to all child support orders, whether temporary or final. Modifications should only be ordered if grounds exist under the guidelines (or perhaps upon grounds previously recognized by the courts as “material/substantial changes”. Further, what is a “temporary modification”? If grounds exist under the child support guidelines to modify a support order, then I suggest there’s no need to call it “temporary”. All prospective child support obligations are “temporary” in the sense that they can be changed if appropriate grounds exist to do so. The court is deciding the very issue, at least as to child support, that the Petition to Modify raises, i.e., grounds under the guidelines to modify child support. A change of custody, whether temporary or final, would always seem an adequate basis to establish or modify a child support award if the issue were not already resolved per the terms of UCA 78-45-4.4.