Kelley v. Kelley

2000 UT App 236, 9 P.3d 171, 405 Utah Adv. Rep. 37, 2000 Utah App. LEXIS 74, 2000 WL 1091580
CourtCourt of Appeals of Utah
DecidedAugust 3, 2000
Docket990711-CA
StatusPublished
Cited by30 cases

This text of 2000 UT App 236 (Kelley v. Kelley) 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
Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171, 405 Utah Adv. Rep. 37, 2000 Utah App. LEXIS 74, 2000 WL 1091580 (Utah Ct. App. 2000).

Opinions

DAVIS, Judge:

{1 Respondent Wayne Kelley appeals the trial court's orders pertaining to his relationship with petitioner Sonia Kelley. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings consistent with this decision.

BACKGROUND

T2 Sonia and Wayne married on May 24, 1980 and subsequently had two children. During their marriage, Wayne worked in the construction industry. Wayne founded Altex Construction in Alaska and owned a majority interest in another company, DSI. Wayne's work required him to make extended stays away from home, during which he occasional ly rented an apartment.

13 In 1994, the terms of a purchase by DSI of another company placed Wayne's personal assets at risk. To minimize this risk and protect the family home, Wayne and Sonia agreed to divorcee, transfer title to Sonia individually, but continue to live as husband and wife. Accordingly, Sonia and Wayne obtained a divorce decree entered on July 18, 1994.

14 This decree provided that Sonia was awarded primary custody of the children, Wayne was to pay child support totaling $1,000 per month, and Sonia was "awarded the sum of not less than $1,000.00 per month as alimony from [Wayne], said alimony to continue for three years, or until [Sonia] remarries, or until terminated by statute, whichever shall occur first." Among the property distributed, Sonia was awarded the marital residence in Bountiful, Utah, and two automobiles. Wayne was awarded all other real property, one automobile, and his personal effects.

T5 Following their 1994 divorcee, Wayne and Sonia made no change in their pre-divorce relationship or living arrangements. Wayne and Sonia continued to cohabit, subject to the traveling demands of Wayne's work, which included obtaining an apartment in Texas. They did not tell their children or anyone else in the community that they had divorced. Their financial relationship remained the same, with Wayne providing funds "at the same standard of living which had existed prior to the entry of the Decree of Divorce."1 They continued to socialize together, including attending a Christmas [174]*174party in 1994 and taking a family vacation in 1995. In May 1995, Wayne gave Sonia an anniversary card indicating he loved her and wished to spend another fifteen years together.

6 In the fall of 1995, Sonia became suspicious that Wayne was romantically involved with another woman. With Wayne's assurance that the relationship was over, however, Wayne and Sonia reconciled-until a few months later. In the spring of 1996, Sonia discovered that Wayne had continued his relationship with the other woman, which precipitated a May 1996 altercation. Wayne subsequently cut off financial support for Sonia and Sonia sought legal counsel.

T7 On July 10, 1996, Sonia moved to modify the divorce decree, asserting such decree was fraudulently obtained and that "[slince the entry of the Decree of Divorce, [Wayne] has fully supported the family by paying over to [Sonia] the approximate sum of $7,500 each month" but that said support had ceased. The court entered a temporary order which provided, inter alia, that Sonia have custody of the children, Wayne make child support and alimony payments totaling $6,000 per month, and that Wayne pay $5,000 in temporary attorney fees. Also on July 10, 1996, Sonia filed a separate action to establish a common law marriage between her and Wayne effective on the day the decree was entered, July 18, 1994, and to obtain a divorce therefrom. This second proceeding was consolidated with the first. In July 1997, Sonia filed another separate action against Wayne seeking damages for fraud and other claims, which was likewise consolidated into the divorce/modification proceedings.

T8 Before the matter came for trial, on August 18, 1997, Wayne moved for partial summary judgment, arguing that there can be no establishment of a common law marriage following the 1994 divorcee because no such adjudication or determination was obtained within one year of the relationship's termination as required by section 830-1-4.5(2) of the Utah Code. See Utah Code Ann. § 80-1-4.5 (1998). The trial court agreed that no timely determination was made, but concluded that the one year time restriction was unconstitutional. Specifically, the court concluded that although the restriction did not run afoul of the Open Courts Clause, see Utah Const. art. I, § 11, it did violate the Uniform Operation of Laws Clause. See Utah Const. art. I, § 24. Consequently, the court denied Wayne's motion for partial summary judgment.

T9 The matter was addressed during a bench trial, after which the trial court made factual findings. Regarding the existence of a common law marriage, the court's findings included the following:

9. ... [Wayne] proposed that the parties should enter into a divorcee so that the home could be placed in [Sonia's] name to protect it from potential of [sic] eredi-tors.... He represented to [Sonia] that the parties were not going to be separated and that nothing would change from how they had lived before.
10. During the Spring and Summer of 1994, the parties agreed to and did enter into a divorcee action, resulting in a divorce being entered on the 18th day of July, 1994, in the District Court of Davis County.... The Court finds that the agreement between the parties to divorcee was an agreement for a non-traditional divorce which created a legal fiction only, designed to protect the residence of the parties from the threat of creditors.
11. ... Both of the parties attended a parenting class and the Court accepts the testimony of Dr. Marty Hood and finds it is credible that during the intermission halfway through the parenting class, [Wayne] approached her and told her that the divorcee the parties were going through was only a business thing and that the children would never know there was even going to be a divoree and that there was no real need for them to continue to attend the class on how to deal with the children in a divorce situation. He further told her that there was not going to be a separation....
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16. Prior to the divorce the standard of living of the parties was one in which respondent would give to petitioner $7,500 a month to pay bills This arrangement [175]*175had existed for some substantial period of time....
17. Following the entry of the Decree of Divorcee in July, 1994, there was no change in the relationship of the parties and in their living arrangements. The parties continued to live the same as they had prior to the divorce. Title to marital residence was not transferred until after this action was filed. The title to the Kodiak property was never transferred. The parties continued to maintain a joint checking account. The parties filed a joint 1994 income tax return, reflecting that they were husband and wife as of the end of 1994.[2] The parties continued to cohabit with sexual relations. The children, who at that time were nine and three and one-half years of age, were never told about any changes in their parents' relationship.
18. In July, 1994, the parties appeared at a counseling class and told the counselor that this divorcee was only for business purposes and that the children would never know that the parties were divorced.

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Cite This Page — Counsel Stack

Bluebook (online)
2000 UT App 236, 9 P.3d 171, 405 Utah Adv. Rep. 37, 2000 Utah App. LEXIS 74, 2000 WL 1091580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-kelley-utahctapp-2000.