Saturday, November 8, 2008
Effective July 24, 2009, the federal minimum wage will be $7.25 per hour.
Sunday, October 12, 2008
Allow me to start the process with some criticisms and proposals of my own (these are in no particular order of importance):
1. Simplify the Utah Code sections governing or pertaining to divorce
2. Eliminate contradictory provisions of the Utah Code
3. Eliminate patronizing, paternalistic, parochial provisions of the code
4. Speed the divorce process without sacrificing factual discovery, accuracy, and procedural fairness
5. Get rid of Rule 26(a) and (f) of the Utah Rules of Civil Procedure
6. Get rid of Rule 101 of the Utah Rules of Civil Procedure and have motion practice before domestic relations commissioners follow the procedure of URCP Rule 7.
7. Make it clear that custody evaluations are not mandatory where child custody is at issue.
8. Allow children to testify (sure, impose reasonable restrictions to prevent abuses of this right, but don't completely bar child testimony)
9. Do not force a party who does not want a custody evaluation to pay for any part of one at the commencement of the custody evaluation (sure, reserve the possibility of apportioning costs at trial, if you must).
10. Eliminate mandatory mediation
11. Make the divorce orientation course and the divorce education course for parents available in a cheap or free book form, and eliminate the requirement that one attend it on person.
1. Eliminate appointment of a guardian ad litem unless there is a prima facie showing that the children are abused or in substantial danger of being abused.
1. Enact a presumption that a divorce litigant who seeks divorce on a no-fault basis is rebuttably presumed not to be entitled to seek an award of alimony or any other form of spousal support.
I will touch on each of these in future postings, but again, as I mentioned at the beginning of this posting, I want to know what YOU suggest. No topic is too small or too big, no topic is too obscure or too sacred to be raised. The idea is to generate ideas for improving the divorce process (and improving is not synonymous with "enlarging" or "complicating").
Saturday, September 20, 2008
Tuesday, July 29, 2008
In what sounds like the plot of a Julia Roberts movie, a jury in
Adding insult to injury, the groom-to-be, Wayne Gibbs, informed his intended, RoseMary Shell, of his decision by leaving her a note in the bathroom.
Shell said she left her friends and a $81,000-a-year job in
Speaking to Meredith Vieira on Friday's Today show, where she appeared with her attorney Lydia J. Sartain, Shell refuted Gibbs's claim that she was swimming in debt. The allegation, she said, is "simply not true."
While Gibbs did not appear on Today, his attorney, Hammond Law, reportedly told jurors in his closing arguments for the breach-of-contract suit: "You would be sending the message that if you have a dispute with somebody and you think they have been a scoundrel, go get a lawyer and hope the Brink's truck backs up to the jury room."
He added, "If you award one penny, you're saying, 'File frivolous lawsuits.' "
So what impact might the RoseMary Shell case have on
Court of Appeals of
163 P.3d 747, 580
Plaintiff Layne D. Hess appeals the trial court's order dismissing his complaint, with prejudice, for failure to state a claim upon which relief can be granted, see Utah R. Civ. P. 12(b)(6). Defendant Jody Johnston cross-appeals, arguing that the trial court committed error when it denied her motion for sanctions under rule 11 of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 11. We affirm.
Hess and Johnston started dating in mid-April 2004 and within three months, they decided to marry.
About this time,
In late April 2005, without any forewarning or explanation,
In November 2005, Hess brought suit against
* * * * *
Despite abolishing the cause of action for breach of a promise to marry, the
II. Failure to State a Claim
Despite finding that
A. Conditional Gift
Assuming, without deciding, that Utah would allow recovery of engagement gifts under a theory of conditional gift, Hess's claims fail as a matter of law because he has not alleged facts that could establish that the travel, vasectomy,3 or money for the vehicle were conditioned on the marriage taking place.4 Instead, Hess urges this court to adopt the position that any gift given during the engagement period carries an implied condition of marriage. We decline to do so. If we were to imply a condition on all gifts given during the engagement period, every gift would be recoverable regardless of the size, cost, significance, or nature of the gift, and without regard to the surrounding circumstances under which the gift was given.
Surely, the donor will give some gifts during the engagement period that are intended as absolute gifts. However, with an implied condition, the donor would have to expressly indicate that he does not expect the gift back in order to make an absolute gift .... turn[ing] traditional gift law on its head.
Cooper v. Smith, 155
Because we do not accept Hess's contention that all gifts given during the engagement period carry an implied condition of marriage, and because “one asserting the delivery [of a gift] was made on some condition ... has the burden of establishing such condition” as an element of recovery under a conditional gift theory, Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct.App.1990), we examine Hess's complaint for allegations that could support his contention that the gifts were conditional.
Hess's complaint states that, in retrospect, Hess would not have made the expenditures but for
Here, Hess's complaint fails to include any facts that could demonstrate, either expressly, by the circumstances, or by the nature of the gifts that his intent was to condition the gifts on the marriage taking place. Cf. Mace v. Tingey, 106 Utah 420, 149 P.2d 832, 834 (1944) (evaluating “the intention of the donor, the situation and relationship of the parties, the kind and character of the property, and the things said, written or done” in determining whether an irrevocable gift was given (emphasis omitted)). First, Hess does not allege that he expressly conditioned the gifts when he gave them. Second, the alleged circumstances existing at the time the gifts were made do not imply that the gifts were conditional. See, e.g., Maiorana v. Rojas, 787 N.Y.S.2d 678, 3 Misc.3d 1107, No. 94988KCV2003, 2004 WL 1258073, 2004 N.Y. Misc. LEXIS 669 (N.Y. Civ.Ct. June 3, 2004) (concluding that ring was not conditional gift when circumstances showed it was given on donee's birthday). But see, e.g., Fanning v. Iversen, 535 N.W.2d 770, 772 (S.D.1995) (holding that circumstances surrounding gift of money implied a condition of marriage where check memo indicated money was for wedding expenses). When evaluating the circumstances surrounding the gift, some jurisdictions will examine the purpose of the gift and inquire whether that purpose can be achieved only by the marriage taking place. See, e.g., Wagener v. Papie, 242 Ill.App.3d 354, 182 Ill.Dec. 417, 609 N.E.2d 951, 953-54 (1993) (examining circumstances surrounding gift/sale of family home to future son-in-law and finding that purpose of gift-to use home as marital home-would be frustrated when the marriage did not ensue); Cooper, 155 Ohio App.3d 218, 800 N.E.2d 372, at ¶¶ 25-27, 32 (finding gift of improvements to the donee's home were not conditional where donor “merely presumed” but did not articulate the intention that they would live in the improved home after they wed); Restatement of Restitution § 58 cmt. c & illus. 5 (1937) (noting that the gift of a car to a putative future son-in-law for the purpose of a honeymoon road trip may be recoverable because the purpose may only be achieved if the marriage ensues). Here, the facts alleged cannot support the conclusion that the purposes of the gifts were frustrated when the wedding did not take place. The complaint states that the purpose of the Alaskan cruise was to travel for pleasure before the wedding. The same purpose applied to the
Finally, the nature of the gifts does not give rise to an inference that they were inherently conditional. Some jurisdictions have recognized that gifts, like engagement rings, carry with them an implied condition of marriage due to the inherent symbolism of the gift. See, e.g., Fierro, 465 N.W.2d at 671 (“The inherent symbolism of [an engagement ring] forecloses the need to establish an express condition that marriage will ensue.”); Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631, 634 (1997) (“[E]ngagement rings should be considered, by their very nature, conditional gifts given in contemplation of marriage.”); see also Restatement of Restitution § 58 cmt. c (noting that a donor may be entitled to restitution “if the gift is an engagement ring, a family heirloom or some other thing intimately connected with the marriage”). Here, the nature of the gifts-trips, a vasectomy, and cash given to a third party-carry no inherent inference that they were conditioned on the marriage.
Thus, even if Utah recognized recovery under a theory of conditional gift, which we do not decide today, Hess's claim for recovery would be barred because none of the alleged facts support the conclusion that at the time he made the gifts, he did not intend for them to take effect until the marriage ensued. Instead, the facts alleged in the complaint can only be read to support the conclusion that Hess intended an unconditional gift. We do recognize that the alleged facts suggest that the reason Hess gave the unconditional gifts was because he and Johnston were engaged. However, the reason for a gift should not be confused with a donor's intent that the gift be revokable. “ ‘Many gifts are made for reasons that sour with the passage of time.’ Unfortunately, gift law does not allow a donor to recover/revoke an inter vivos gift simply because his or her reasons for giving it have ‘soured.’ ” Cooper v. Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, at ¶ 25 (quoting Albanese v. Indelicato, 25 N.J. Misc. 144, 51 A.2d 110 (1947)); see also Restatement of Restitution § 58 (1937) ( “A person who has conferred a benefit upon another, manifesting that he does not expect compensation therefor, is not entitled to restitution merely because his expectation that an existing relation will continue or that a future relation will come into existence is not realized, unless the conferring of the benefit is conditioned thereon.”). We therefore affirm the trial court's dismissal of Hess's cause of action for recovery under a theory of conditional gift.
B. Unjust Enrichment
Hess's complaint does not allege facts sufficient to sustain a claim for restitution under a theory of unjust enrichment. To state a claim for unjust enrichment, a plaintiff must allege facts supporting three elements: “(1) a benefit conferred on one person by another; (2) an appreciation or knowledge by the conferee of the benefit; and (3) the acceptance or retention of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.” Jeffs v. Stubbs, 970 P.2d 1234, 1248 (
Unjust enrichment occurs when a person has and retains money or benefits that in justice and equity belong to another; however, “[t]he fact that a person benefits another is not itself sufficient to require the other to make restitution.” Fowler v.
Like unjust enrichment, promissory estoppel is an equitable remedy and should be employed where injustice can be avoided only by enforcement of the promise. To state a claim for promissory estoppel, Hess must allege four elements:
(1) [t]he plaintiff acted with prudence and in reasonable reliance on a promise made by the defendant; (2) the defendant knew that the plaintiff had relied on the promise which the defendant should reasonably expect to induce action or forbearance on the part of the plaintiff or a third person; (3) the defendant was aware of all material facts; and (4) the plaintiff relied on the promise and the reliance resulted in a loss to the plaintiff.
Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, ¶ 16, 158 P.3d 1088 (quotations omitted). Here, Hess has failed to allege facts that would support the first element, that he acted with prudence and reasonable reliance on
A promise to marry is unique in that it is not generally considered enforceable, but instead is made for the purpose of “allow[ing] a couple time to test the permanency of their feelings.” Fierro v. Hoel, 465 N.W.2d 669, 672 (
Similarly, even assuming without deciding that Jackson v. Brown, 904 P.2d 685 (Utah 1995), does not preclude a claim for breach of contract based on reciprocal promises to marry, Hess's claim fails because his allegations cannot support a conclusion that the damages were causally related to the breach.
Hess does not allege that
Rule 11 sanctions are inappropriate where, as here, counsel's interpretation of existing law is reasonable and there is no other evidence demonstrating counsel's failure to make a reasonable inquiry required by rule 11. Therefore, the trial court's denial of
1In considering the correctness of an order dismissing a complaint, we assume the truthfulness of each of the facts alleged by plaintiff. See Oakwood Vill. L.L.C. v. Albertsons, Inc., 2004 UT 101, ¶ 9, 104 P.3d 1226.
4We note the possible exception of the engagement ring. See, e.g., Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct.App.1990) (“An engagement ring given in contemplation of marriage is an impliedly conditional gift.”); Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631, 634 (1997) ( “Once it is established the ring is an engagement ring, it is a conditional gift.”). However, because
5Johnston had already undergone a tubal ligation, but remained concerned about the possibility of pregnancy.
6Hess has not alleged that
7Hess also characterizes his claim for promissory estoppel as a claim of reasonable reliance. We, therefore, treat them together under the rubric of promissory estoppel.
8After all,[w]hat fact justifies the breaking of an engagement? The absence of a sense of humor? Differing musical tastes? Differing political views? The painfully learned fact that marriages are made on earth, not in heaven. They must be approached with intelligent care and should not happen without a decent assurance of success. When either party lacks that assurance, for whatever reason, the engagement should be broken. No justification is needed. Either party may act. Fault, impossible to fix, does not count.
9Hess does allege that in late 2004 the couple eventually set an actual wedding date for May 5, 2005. However, at the time the trips were taken, the vasectomy was performed, and the money was given to
10As noted in