'ê~"C7. .. II ii 'I 'i ~ 'I \ II ll I II II ~ II o II II II ii II ll ..JJCl i _nøW1æ ~(m iI II .. ~ ii .e n g II II := Justice A.H. Ellett 7 Working Through Utah's Agency Disclosure Law 11 Amending Utah's Immunity Statute 14 . UTAH BAR JOURAL Published by Vol. 1, NO.2 October, 1988 The Utah State Bar 645 South 200 East Salt Lae City, Utah 84111 Telephone (801) 531-9077 President Kent M. Kasting Question of the Month 4 President-Elect Hans Q. Chamberlain President's Message 6 Executive Director Justice A.H. Ellett 7 Stephen F. Hutchinson By Justice J. Allen Crockett, Retired Board of Bar Commissioners / H. James Clegg Working Through Utah's Agency Disclosure Law 11 James Z. Davis By David W. Johnson, Esq. Randy L. Dryer Hon. Pamela T. Greenwoo Stewar M. Hanson Jr, Amending Utah's Immunity Statute 14 James R. Holbrook By David J. Schwendiman and Jackson B. Howard Hon. Gordon J. Low Creighton C. Horton II, Assistant Attorney General Anne M. Stirba Exoffcio Members State Bar News 16 Bruce C. Hafen Norman S. Johnson Reed L. Marineau Case Summaries 23 Edward D. Spurgeon By Wiliam D. Holyoak and Clark R. Nielsen Young Lawyers Section President Jerr D. Fenn Jr. Legislative Report 27-. Bar Journal Committee CLE Calendar 29 and Editorial Board Editor Calvin E. Thorp Classified Ads 30 Assiate Editors Randall L. Romrell David B. Enckson C" Letters Editor Nann Novinski-Durando Articles Editors Leland S. McCullough Jr. Glen W. Roberts Views from the Bench Cover: Photograph of Utah Supreme Court Justice Albert H. Ellett, Judge Michael L. Hutchings 1898-1986. Legislative Report Editor Douglas A. Taggar . Cas Summaries Editors Willam D. Holyoak The Utah Bar Journal is published monthly, except July and August, by the Utah State Bar. One copy of Clark R. Nielsen each issue is furnished to members as par of their State Bar dues. Subscnption pnce to others, $20; Single copies, $2.50; second-class postage paid at Salt Lake City, Utah. For information on advertising rates and Advertising space reservation, call or wnte Utah State Bar offces. Lar A. Steele Statements or opinions expressed by contnbutors are not necessanly those ofthe Utah State Bar,'and M. Karlynn Hinman publication of advertisements is not to be considered an endorsement of the product or service advertised. Kevin P. McBnde Margaret R. Nelson Hon. Homer F. Wilkinson Copyright (Ç 1988 by the Utah State Bar. All rights reserved. October, 1988 3 -QUESTION ,OF THE'MONTH- By Nann Novinski-Durando wil periodi- support has available a variety of possible those cracks be widened by case law or cally pose a "Question of the remedies and enforcement procedures- statute and perhaps widened enough to Month." Readers are invited to contempt proceedings, execution, attach- crumble the wall. The Utah Bar Journalsubmit responses. Letters should ment, garnishment, wage assignment, In Race v. Race, 740 P.2d 253 (Utah be typed, double spaced, signed by the liens, criminal non-support actions. 1987), the Utah Supreme Court rejected a writer and mailed no later than one month Whether enforcement and collection is suc- trial court order for support payments that after the question is published, all generally cessful in a given case depends on various conditioned payment on development of a consistent with the letters to the editor facts and factors but, nevertheless, pro- visitation schedule: "Child support is an guidelines outlined in the "Editor's Note," cedures are available and can be effective. obligation imposed for benefit of children August/September, 1988 issue of the Jour- The same cannot be said about enforcement . We find no circumstances here which nal. procedures available to the non-custodial justify the trial court in deferring support A cross section of responses wil be parent who is being unjustifiably denied until visitation between the children and printed in a later issue. Not all letters visitation rights in violation of the terms of their father could be worked out." Did that received wil be printed. Bar Journal editors the divorce decree. Order-to-show-cause language indicate that the court might find wil select responses that reflect differing actions and contempt proceedings often do in another case circumstances that would views and offer meaningful insights into or little more than result in another order for justify the deferrng of support payments? possible solutions to the questions posed. the custodial parent to ignore. The custodial And if so, would unreasonable and unjusti- parent who refuses to comply with the di- fiable interference with visitation rights be a QUESTION FOR DISCUSSION vorce decree is just as likely to ignore post- circumstance that would be such a justifi- THIS MONTH divorce orders; and so the cycle continues. cation? Should the law be changed to allow the This, in effect, leaves the non-custodial In an earlier case, Hunter v. Hunter, 669 non-custodial parent to withhold, suspend, parent with no practical method of enforcing P.2d 430 (Utah 1983), the custodial parent defer or cancel child support payments visitation rights. petitioned for nine years of back child sup- where the custodial parent unjustifiably The non-custodial parent in such cases port. After the divorce, she had gone into frustrates or denies visitation to the non- may stop paying child support, feeling jus- hiding, concealing herself from the child's custodial parent? tified in refusing to support a child with father and thus completely denying him If so, why, when and/or how? What safe- whom he/she is denied contact, and then visitation rights. The trial court found that guards or standards should be instituted? react with bitterness against a legal system she had waived her right to collect and was If not, why not? Are present procedures that attempts to enforce the support obliga- estopped from collecting the back support. suffcient to protect and enforce the visita- tion yet remains unable to enforce visitation The Supreme Court reversed. Two dissent- tion rights of the non-custodial parent? rights. It is for these reasons that many see a ing justices found clear acts of waiver and need to link support and visitation, a need to estoppel (.. "the appellant (mother) BACKGROUND INFORMATION permit child support payments to be with- made it clear she wanted the respondent ON THE QUESTION held, deferred or suspended when visitation (father) out of he/ life completely. .") This month's question focuses on a prob- is unjustifiably denied or frustrated or where and would have upheld the lower court lem often overlooked in the on-going the custodial parent's conduct leads to a ruling. But the three-justice majority found struggle to protect and enforce the rights of child's unjustifiable refusal to see the other the concealment justifiable and, hence, no paries, including children, in divorce ac- parent. conduct on the par of the mother that con- tions. Traditionally, courts have rejected using I stituted acts of waiver or estoppel. This BecauseP of its magnitude and serious child support as a sword to enforce visitation i reasoning indicates that if the majority had consequences, the problem of the non- rights. Support and visitation have been found the concealment to be unjustified, custodial parent who fails or refuses to make regarded as separate issues. Utah has been i then perhaps the withholding of back sup- court-ordered child support payments often fairly traditional in its approach to such , port would have been upheld. If so, one overshadows the problem of the non-custo- linkage. But as non-custodial parents have would argue that the unjustified denial or dial parent who does pay child support but is become more vocal and persevering in their frustration of visitation rights either unjustifiably denied visitation rights by the attempts to secure and enforce their rights, amounts to a waiver of child support or is custodial parent. The latter may be less recent Utah cases might be examined for conduct that should estop the custodial par- pervasive but is no less serious in its conse- cracks in the wall separating support and ent from collecting support. quences. Yet enforcement procedures are visitation. Two questions might then be The Utah Supreme Court parially de- often ineffective or non-existent. addressed: Have cracks indeed been left for parted from the traditional separation of The custodial parent not receiving child the non-custodial parent and, if so, should visitation and support in Rohr v. Rohr, 709 (continued on page 5) 4 Vol. I, No,2 QUESTION OF THE MONTH (continued from page 4) P.2d 382 (Utah 1985). The lower court had N.Y.S.2d 861 (Fam.Ct. 1976), "The child (Citations omitted.)" Later cases ques- set up a schedule that restrcted visitation must be viewed as the joint holder of two tioned this expansive interpretation and a rights because of unpaid support and de- rights, visitation and support, of which the 1986 amendment to Sect. 241 provides that creed that the restrictions could not be more crucial is the right of visitation. the section cannot be used as a defense in an changed or modified until all back support Thus, under certain circumstances the court action to enforce child support or as grounds had been paid. The Supreme Court rejected may restrict the child's right to support from to cancel arears in child support. the conditioning of future modification (that the non-custodial parent, an obligation Family Court Act Sect. 451 also contains is, the expansion of visitation by easing the which may be met from other sources, in an a restriction on the power of the court to restrictions) upon the father's compliance effort to enforce the child's more critically cancel arearages in child support for inter- with the support order, a ruling in line with important right to visit the non-custodial ference with visitation unless good cause is the separation of support orders and visita- parent." South Carolina Department of shown for the failure of the non-custodial tion rights.