Adelman v. Adelman

815 P.2d 741, 165 Utah Adv. Rep. 45, 1991 Utah App. LEXIS 110, 1991 WL 138166
CourtCourt of Appeals of Utah
DecidedJuly 25, 1991
DocketNo. 900251-CA
StatusPublished
Cited by3 cases

This text of 815 P.2d 741 (Adelman v. Adelman) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adelman v. Adelman, 815 P.2d 741, 165 Utah Adv. Rep. 45, 1991 Utah App. LEXIS 110, 1991 WL 138166 (Utah Ct. App. 1991).

Opinion

OPINION

GARFF, Judge:

Appellant, David Clark Adelman appeals an order from an order to show cause clarifying in part, enforcing in part and modifying in part a decree of divorce that ended his marriage with appellee, Mary Anne Lynch. We affirm in part, reverse in part, remand in part, and vacate in part.

The parties divorced in 1983. Further orders were made by the court with respect to property, custody, and support in an amended decree dated November 13, 1984. Ms. Lynch was awarded custody of the parties’ minor children and Mr. Adelman was ordered to pay child support. Both parties were ordered to carry health and accident insurance for the benefit of the children. The issues involving the retirement program division and an equitable lien on the family home were determined in an amended decree entered August 8,1985. The amended decree awarded Ms. Lynch a portion of Mr. Adelman’s retirement benefits pursuant to the formula set forth in Woodward v. Woodward, 656 P.2d 431, 433 (Utah 1982). Mr. Adelman’s equity in the family home was fixed at $34,636, to be paid in full, after subtracting one-half of the closing costs, at the first of several designated events, one of which was Ms. Lynch’s remarriage. Ms. Lynch was awarded $5,000 in alimony, payable at a rate of $166 per month.

On September 7, 1989, Ms. Lynch moved for an order to show cause why certain specified relief should not be granted. The matter was heard before a domestic relations commissioner who entered written recommendations on September 14, 1989. The court affirmed the same and entered its order on November 3, 1989 granting substantially all of the relief requested. That relief included (1) an order requiring Mr. Adelman to assign to Ms. Lynch her portion of the retirement benefits awarded to her in the amended decree; (2) a requirement that Mr. Adelman name Ms. Lynch as beneficiary of his retirement survivorship benefit; (3) a judgment of $5,000 for back alimony plus ten percent interest from the date each payment became due and payable; (4) an order requiring Mr. Adelman to pay for one-half of the unreimbursed medical and dental expenses of the children incurred since 1982, plus ten percent interest from the date each bill was paid; (5) an order requiring Mr. Adelman to pay for one-half of all future unreimbursed medical and dental expenses of the children; (6) an order requiring that Mr. Adelman’s equity in the marital home be offset by the judgments against Mr. Adelman set forth in the order; (7) an order requiring that Mr. Adel-man’s equity not be paid him until such time as he complies with the terms of the order; and (8) an award of $1,000 for Ms. Lynch’s attorney fees.

Mr. Adelman appeals the order raising issues concerning the survivor benefits, the assignment of the retirement benefits, the medical and dental expenses, the equity on the marital home, and the award of attorney fees. Ms. Lynch requests attorney fees below and on appeal.

SURVIVOR BENEFITS

Mr. Adelman claims the court erred in awarding Ms. Lynch survivorship benefits because the amended decree awarded her only a portion of the retirement benefits and not the survivor benefits. He argues that, because survivor benefits were not litigated in the original proceeding, it was improper to amend, clarify, or modify the decree to include them by way of an order to show cause.

Ms. Lynch claims that the court reasonably assumed that the original decree contemplated survivor benefits along with the retirement benefits because survivor benefits were described in an exhibit before the court in the original proceedings. Therefore, the issue was properly raised in an order to show cause because she was seeking to clarify what was already implicit in the original order.

Both parties concede that the fact that Ms. Lynch remarried and that she did so [744]*744before age fifty-five, renders her ineligible for survivor’s benefits.

Our general rule is to “refrain from adjudicating issues when the underlying case is moot. A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants.” Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989). See also Reynolds v. Reynolds, 788 P.2d 1044, 1045-46 (Utah App.1990). An exception to this rule is “when the case presents an issue that affects the public interest, is likely to recur, and because of the brief time that any one litigant is affected, is capable of evading review.” Burkett, 773 P.2d at 44.

In a case such as this, where the issue is moot and where “the order of the district court could affect ‘subsequent proceedings or rights of the parties,’ we vacate the order and remand the case with instructions to dismiss.” Cullimore v. Schwendiman, 652 P.2d 915, 916 (Utah 1982). Likewise, we vacate the award to Ms. Lynch of the survivorship annuity and instruct the court to dismiss that portion of the order to show cause.

Ms. Lynch contends that any rights she may have had in the annuity could be reinstated upon her current marriage ending in divorce, annulment, or widowhood. Therefore, she argues that this court should affirm those inchoate rights. This issue is also inappropriate for appellate review because it is not ripe. Ripeness occurs when “a conflict over the application of a legal provision [has] sharpened into an actual or imminent clash of legal rights and obligations between the parties thereto.” Redwood Gym v. Salt Lake City Comm’n, 624 P.2d 1138, 1148 (Utah 1981). We therefore refrain from addressing what rights may be reinstated in the event Ms. Lynch’s current marriage should end.

ASSIGNMENT OP RETIREMENT BENEFITS

Mr. Adelman claims that the court erred in ordering him to formally assign to Ms. Lynch her portion of the retirement benefits because he had already completed all steps necessary to allow Ms. Lynch to claim her portion of the benefits. He claims that Ms. Lynch was aware that he had completed these steps because she had placed into the record letters from him reflecting that fact. Therefore, Mr. Adel-man claims that the order was unnecessary and was brought in bad faith.

Ms. Lynch claims that Mr. Adelman failed to formally designate her with the United States Office of Personnel Management for benefits under his retirement program and therefore, the court did not err in ordering him to make the assignment.

Here, the order, which is unaccompanied by findings of fact or conclusions of law, directs Mr. Adelman to formally assign to Ms. Lynch her portion of the retirement benefits by a certain date. We note that this’ order could constitute either an enforcement or a modification of a previous order. This court and the Utah Supreme Court have reversed and remanded cases where findings were inadequate to support the conclusions. See, e.g., Sanderson v. Tryon, 739 P.2d 623, 626-27 (Utah 1987); Smith v. Smith, 726 P.2d 423, 426 (Utah 1986); Marchant v. Marchant,

Related

Busche v. Busche
2012 UT App 16 (Court of Appeals of Utah, 2012)
Nelson v. Nelson
2004 UT App 254 (Court of Appeals of Utah, 2004)
Adamson v. Adamson
2004 UT 41 (Utah Supreme Court, 2004)

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Bluebook (online)
815 P.2d 741, 165 Utah Adv. Rep. 45, 1991 Utah App. LEXIS 110, 1991 WL 138166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adelman-v-adelman-utahctapp-1991.