A.S. v. R.S.

416 P.3d 465
CourtUtah Supreme Court
DecidedNovember 14, 2017
DocketNo. 20151023
StatusPublished
Cited by31 cases

This text of 416 P.3d 465 (A.S. v. R.S.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.S. v. R.S., 416 P.3d 465 (Utah 2017).

Opinion

Justice Durham, opinion of the Court:

INTRODUCTION

¶1 A.S. (Father) appeals the district court order awarding R.S. (Mother) attorney fees and costs for the underlying juvenile court proceedings. We do not reach the merits of this case because we hold that we lack jurisdiction.1 Mother is awarded reasonable attorney fees and costs on appeal. We remand this case to the district court for a determination of those fees and costs.

BACKGROUND

¶2 Mother and Father petitioned for divorce in the district court in 2008. In 2012, Father petitioned to terminate Mother's parental rights based on unsubstantiated allegations of her sexual abuse of their two children. Mother counter-petitioned the court to terminate Father's parental rights or to award her physical custody of the children. As a result of the exclusive original jurisdiction of the juvenile court over matters concerning "the termination of the legal parent-child relationship," Utah Code section 78A-6-103(1)(g), and "mak[ing] a finding of substantiated, unsubstantiated, or without merit," id. section 78A-6-103(6), on matters of "a severe type of child abuse or neglect," id. section 78A-6-323(1), the juvenile court heard the petition rather than the district court. The juvenile court and the district court maintained concurrent jurisdiction under id. section 78A-6-104 until the exclusive original jurisdiction of the juvenile court was extinguished. Id. § 78A-6-104(1)(b). ("The district court or other court has concurrent jurisdiction with the juvenile court: ... with regard to proceedings initiated under Part 3, Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act."). Therefore, while the district court had continuing jurisdiction over the divorce proceedings, including a determination "of support, custody, and parent-time ... incidental to the determination of a cause in district court," the juvenile court could "change the custody ... support, parent-time, and visitation rights previously ordered in the district court as necessary to implement the order of the juvenile court for the safety and welfare of the child. ... so long as the jurisdiction of the juvenile court continues." Id. § 78A-6-104(3)-(4)(b). "The juvenile court has jurisdiction over questions of custody, support, and parent-time, of a minor who comes within the court's jurisdiction ...." Id. § 78A-6-104(5). The juvenile court denied Father's petition to terminate Mother's parental rights, granted Mother custody of the minor children, cited both Father and J.S. (Stepmother) for contempt, and ordered Father and Stepmother to pay all legal fees, costs, and expenses incurred by Mother.

¶3 Father and Stepmother prematurely appealed the juvenile court's order before it became a final order, because the award for attorney fees and costs had not yet been reduced to a judgment. See DFI Props. LLC v. GR 2 Enters. LLC , 2010 UT 61, ¶ 20, 242 P.3d 781 (2010) ("This case represents another in the line of cases where we have held that a judgment awarding attorney fees in a yet-to-be-determined amount is not final for purposes of appeal. ... [and] we lack jurisdiction over appeals from such judgments ...."). But the court of appeals, apparently unaware that the order appealed from was not a final order, failed to dismiss *468the notice of appeal and instead issued an opinion affirming "[t]he juvenile court's order ... in all respects except for the determination of contempt," which it vacated because of lack of notice and hearing and remanded to the juvenile court for a hearing on the contempt allegations. In re E.S. & N.S. , 2013 UT App 222, ¶ 9, 310 P.3d 744. Because the time to petition for writ of certiorari on the court of appeals' opinion has lapsed, the parties are foreclosed from arguing that the court of appeals lacked jurisdiction, and we treat it as a final judgment.2

¶4 During the pendency of the first appeal, the juvenile court continued to have jurisdiction over, and hold status hearings regarding, the welfare of the children. On remand from the court of appeals, the juvenile court held contempt proceedings on December 13, 2013, issuing its contempt order against Father and Stepmother on January 23, 2014. A child welfare status hearing was held on January 16, 2014 with a follow-up phone conference on February 20, 2014. The juvenile court, having determined that the outstanding motions regarding the child welfare case were resolved as of its March 17, 2014 order, released the Guardian ad Litem from the matter and terminated the juvenile court's jurisdiction, noting that a separate order regarding the contempt charges was issued and that the outstanding order for attorney fees would be referred to the district court for entry of a judgment, because that court now had exclusive jurisdiction. See UTAH CODE § 78A-6-103 to -104. The findings and order of the juvenile court are "binding on the parties to the divorce action as though entered in the district court" when "a copy ... has been filed with the district court." Id. § 78A-6-104(4)(c) (emphasis added). However, once the district court again has exclusive continuing jurisdiction, the district court is able to make changes to those orders to ensure the appropriate needs of the children and the parties are met. See Id. § 30-3-5(3)-(4) ("The [district] court has continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary. ... Child support, custody, visitation, and other matters related to children born to the mother and father after entry of the decree of divorce may be added to the decree by modification.").

¶5 As jurisdiction over the case had been transferred to the district court, Mother filed a motion for a judgment on the attorney fees and costs ordered by the juvenile court, with accompanying memorandum and affidavit. Father opposed the motion, arguing that the court did not have authority to award attorney fees and costs, but not addressing the specific validity of the amount requested. The case first came before a commissioner, who ended the proceedings when Father's counsel began to argue the lack of authority of the juvenile court to award attorney fees. The commissioner correctly noted that a juvenile court judge, with the equivalent authority of a district court judge, had made the ruling and that the commissioner did not have authority to change the ruling of "a higher judicial authority ...

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Bluebook (online)
416 P.3d 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/as-v-rs-utah-2017.