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The Utah Supreme Court has adopted a new effective date for newly created rule 109 of the Utah Rules of Civil Procedure. The rule was formerly effective May 1, 2019, but is now effective November 1, 2019. This new November 2019 date will accommodate programming changes necessary to effectuate the rule’s purposes.

The new rule 109 is entitled “Injunction in certain domestic relations cases.” It provides that in certain domestic relations cases, an injunction will enter upon the filing of the case. Its provisions address areas such as disposing of property, disturbing the peace of the other party, committing domestic violence, using the other party’s identification to obtain credit, interfering with telephone or utility service, modifying insurance, and behavior around the minor children. The injunction is binding on the petitioner upon filing the initial petition and on the respondent after the filing of the initial petition and upon receipt of a signed copy of the injunction as entered by the court.

To see the new rule 109, click on this link: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2019/03/URCP109.Redline.pdf

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post New court rule for Utah divorce cases appeared first on Divorce Utah.

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In your marriage, how did you decide which jobs each of you would be responsible for?

  1. We know that we’re a team and need to work together to succeed as a couple and family. Knowing that helps motivate us to do the hard work, even when we may not always want to do it.
  2. We try to play to our strengths and interests as much as we can when assigning various roles. No reason for one of us to see a job as misery when the other one is better at it and/or happy to do it.
  3. From the beginning (even before we were married) we decided to follow our religion’s advice as to what the roles of a husband and wife should be. I know that sounds quaint, even bad to some people. It’s not. Eternal principles are an anchor and a sure guide. They work regardless of changes in the times and regardless of the unique qualities of each individual marriage. “No one man, however brilliant or well-informed, can come in one lifetime to such fullness of understanding as to safely judge and dismiss the customs or institutions of his society, for these are the wisdom of generations after centuries of experiment in the laboratory of history.” (Will and Ariel Durant, The Lessons of History (New York: Simon and Schuster, 1968), pp. 35–36)

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/In-your-marriage-how-did-you-decide-which-jobs-each-of-you-would-would-be-responsible-for/answer/Eric-Johnson-311

The post In your marriage, how did you decide which jobs each of you would be responsible for? appeared first on Divorce Utah.

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Does cohabitation before marriage affect how long alimony is awarded?

How can cohabitation and marriage be calculated to determine the terms of a divorce judgment?

Great question.

How long can alimony be awarded?

In Utah, where I practice divorce and family law, alimony cannot (except in rare extenuating circumstances) “[a]limony may not be ordered for a duration longer than the number of years that the marriage existed” (Utah Code § 30–3–5(8)(j)).

Can alimony take into account any period of time we cohabited before marriage?

No. If, for example, you cohabited without being married for 5 years, then married and divorced after being married for, say, 4 years, the period of time for which alimony could be paid is 4 years, not 9, even though you cohabited for 9 years (five years before your marriage ceremony, then 4 years after your marriage ceremony).

The duration of alimony in Utah can only be, with rare exception, no longer than the number of years of marriage. This does not mean that alimony “shall be” equal to the length of the marriage, only that alimony can be awarded for a period equal to the length of the marriage, but it can also be (and usually is) awarded for a period less than the length of the marriage.

But what if you could claim that you entered into a common law marriage when you cohabited and then you later participated in a solemnized marriage ceremony?

Would a previously existing common law marriage mean that the subsequent solemnized marriage ceremony “revoked” the previous common law marriage? Would that mean that your “marriage clock” started over upon entering into the solemnized marriage? Or would the solemnized marriage have no effect on the existence of the common law marriage? It’s a very interesting question, and one that I’m not sure Utah case law has yet addressed or resolved.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-cohabitation-and-marriage-be-calculated-to-determine-the-terms-of-a-divorce-judgement/answer/Eric-Johnson-311

The post Does cohabitation before marriage affect how long alimony is awarded? appeared first on Divorce Utah.

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First, boredom is a part of life, married or not. Don’t worry too much about a little boredom now and then, and don’t waste too much effort on “boredom avoidance.” It’ll come for you on occasion regardless of what you do. With the exception chronic boredom, this too shall pass.

Second, avoiding a boring married life requires effort when boredom starts to rear its ugly head. As others have stated, one of the things many modern married couples fail to grasp is that marriage requires your commitment to its success. We cannot sit back and expect simply saying “I do” is where that commitment both begins and ends.

It’s very easy to become complacent and to take a spouse for granted. Familiarity, as they say, breeds contempt. One thing (among many) that has helped me value and care for my marriage and family is recognize how much my wife has blessed my life, how much her love, care, and influence has made me a better person.

Boredom usually arises when 1) external stimuli are either insufficient to engage our attention/motivate us or just not of interest to us or 2) we know (or think we know) what we want and can’t have it at that moment or 3) we don’t know (or think we don’t know) what we want at the moment, so we do nothing or 4) we take our good fortune for granted and feel (incorrectly) entitled to even more.

When external stimuli are lacking, seek them out. If what used to interest you has become routine or no longer fulfilling, that’s not a failing on your or your spouse’s part. Try something new. Variety is the spice of life.

When you don’t have what you want, rather than sitting around and feeling disappointed or aimless, take that quiet, un-distracted moment study the problem. See if it’s as bad as you first thought. It usually isn’t. The solution may be easy to see (and often the solution is realizing that this momentary boredom will pass soon enough. See if what you think you’re lacking is really lacking. Maybe it’s just hidden or needs to be nursed back to health. If not, think on the steps you might take to achieve what you want, then take the first step, and with anticipation.

Finally, your boredom cure may lie in repenting and being grateful. There are billions of people who don’t get bored because their lives are too demanding and brutal to allow it. In those slow and unhurried moments count your blessings. Consider that what you call “boredom” may be a time to rest and take stock.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-do-I-avoid-a-boring-married-life/answer/Eric-Johnson-311

The post How do I avoid a boring married life? appeared first on Divorce Utah.

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What does it mean when my lawyer said that everything is looking okay in the CPS case, that she got some insights on the case, and she talked to the CPS lawyer? Does this mean that I am about to get my child back?

It could, but something that ambiguous could mean almost anything, unfortunately.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-does-it-mean-when-my-lawyer-said-that-everything-is-looking-okay-in-the-CPS-case-that-she-got-some-insights-on-the-case-and-she-talked-to-the-CPS-lawyer-Does-this-mean-that-I-am-about-to-get-my-child-back/answer/Eric-Johnson-311

The post Re: CPS. Is this good news? appeared first on Divorce Utah.

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As a lawyer, what are top things you wish your clients would stop saying/doing?

What a great question. Thank you for asking.

I have a three-part answer: 1) for all situations, 2) in criminal law, and 3) in family law.

In all situations:

  • The moment you honestly think you could be or might be in legal trouble, consult a good lawyer(a good lawyer, not just any lawyer—a law license alone does not guarantee competence; not even close). Do not wait. Do not jump over dollars to pick up dimes. What makes a lawyer’s job hard is when people wait too long and miss out on all the help the lawyer could have been from the beginning.
  • Sometimes it’s better (and less expensive) to take your lumps and move on with your life than it is to try to get justice through the courts. The legal system is fairly well-designed but is, by and large, deplorably administered, and it’s only getting worse.
  • A good lawyer is only as good as the client who follows his advice.
  • Despite what you see on TV, good lawyers are not wizards; they cannot make silk purses out of pig’s ears no matter how much you offer to pay them.
  • Good lawyers are not wusses. Threatening them and complaining to them will not make them or your case any better.

In criminal law: do not speak with the police without a lawyer to confer with you. If you think that this is only good advice for criminals, you could not be more wrong. This is a rule that protects the innocent.

The reasons why may not be immediately apparent, even to lawyers like me.

So here is a superb explanation from a lawyer and a police officer who discussed the matter together. Watching and understanding these videos by Professor James Duane could spare you or a loved one misery, jail, and ruin (they are that good, and they are really interesting too):

Don’t Talk to the Police – He’s absolutely right. Ignore his advice at your peril.

You Have the Right to Remain Silent

You Have the Right to Remain Innocent – watch this to the end. Fascinating insights.

In family law:

  • Stay frosty, stay classy in all your interactions with your spouse during your divorce case. It keeps you out of trouble. It keeps that white hat squarely on your head.
    • No matter how big an ass your spouse is, do not rise to the bait. That’s what your spouse wants you to do.
    • Don’t fight fire with fire. Don’t make it easy for your spouse to cast you as the bad guy.
    • Two wrongs don’t make a right. Don’t let Murphy’s Law victimize you. Remember how the referee always seems not to notice the guying who’s fouling you the whole game? And so you think, “Well, if the ref won’t call fouls, then I’m more than justified in defending myself and pushing back, just this once.” And that’s precisely when the foul gets called on you.
  • When it comes to “winning” a case for joint legal and joint physical custody, you will notappear to be the better parent by trying to make your spouse look worse.
    • You win the custody fight by giving the judge every reason to believe it will work.
    • Judges get tired of couples airing their dirty laundry in public. Judges award joint custody when they believe the parents can get along. Even if your spouse is terrible person and all you do is tell the truth, tearing your spouse down will not build you up and will only convince the judge that you and your spouse will not/cannot co-parent successfully.
  • Don’t lie because your spouse is lying. Don’t lie to “neutralize” your spouse’s lies.
    • Please see this paradox for the truths it contains: lying in your divorce actually works quite well, until it doesn’t.
    • “If you tell the truth, you don’t have to remember anything.” ― Mark Twain
    • You aren’t nearly as good a liar as you believe. No, really.
  • No, really. Accept it. Tell the truth, if only to avoid having your unartful lying sink you.
  • There is a vast difference between what you know to be true and what you can prove to the judge with verifiable evidence.
    • If you cannot prove it with objective, verifiable evidence, don’t be surprised if the court does not believe you.
    • so don’t stake your case on merely “telling my true story”; that’s rarely enough
    • If you don’t have the evidence to win on a certain issue, don’t set your heart on winning on that issue. You will likely be disappointed, if you do.
  • Your divorce is going to cost you 4 to 10 times more than you think. The better you prepare, the better you understand the law, and the better you accept the limitations of the legal system, the less money you’ll waste.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/As-a-lawyer-what-are-top-things-you-wish-your-clients-would-stop-saying-doing/answer/Eric-Johnson-311

The post What are top things you wish your clients would stop saying/doing? appeared first on Divorce Utah.

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What can I do to keep my self busy now that I am getting divorced? On the legal side of your life:

Pour a good portion of your extra time (if you have any) into cooperating with your divorce lawyer to ensure you prepare and make the best case you can. I can’t tell you how often what would otherwise be a strong to solid case has significantly faltered or even failed because the client to simply didn’t give enough attention to his or her own case.

And:
  • Educate yourself on how divorce law works. Go online and read good divorce blogs. Go to the library and find good books and read them too. You’ll be surprised how different divorce law is from what you assumed it is.
  • The more you learn the law and how it operates, the better you will know what facts and evidence matter most. The less likely you will be disappointed in the way the law functions because you will know how it functions, as opposed to living in an ignorant dream world.
  • Visit the courthouse and attend other people’s divorce hearings and trials (they are open to the public).
  • I would also tell you to speak with people who have gone through the divorce process previously, but with a caution. Talk to divorced people to learn about what they experienced and how it made them feel. Ask them what they would have done the same and what they would have done different. Ask them what they found effective in dealing with the tumult of divorce.
    • But generally do not ask a non-lawyers to explain divorce law or ask them for legal advice. I am still amazed (even after decades of hearing and reading the crazy and false stuff people believe about divorce) at the volume fantastically bad misinformation out there.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-can-I-do-to-keep-my-self-busy-now-that-I-am-getting-divorced/answer/Eric-Johnson-311

The post What can I do to keep my self busy now that I am getting divorced? appeared first on Divorce Utah.

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Clearly not all divorces result in ex-spouses being friends.

But for some, the split, the separation helps the members of the former couple feel safer, freer, less restricted, less limited, less pressured, less deprecated by the other.

In a way, it’s a twist on the old aphorism “absence makes the heart grow fonder.”

The strain of the differences, the worries, and conflicts either decreases or even disappears. This allows the two people to focus on and appreciate each other’s qualities instead of their faults. They can be friendly toward each other precisely because they know they aren’t “bound” to each other in a miserable marriage anymore. They can like each other for the good qualities without having to suffer the bad qualities anymore.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Why-weren-t-you-and-your-ex-spouse-as-good-as-friends-when-you-were-married-as-you-are-now-that-you-are-divorced/answer/Eric-Johnson-311

The post Why weren’t you and your ex-spouse as good as friends when you were married as you are now that you are divorced? appeared first on Divorce Utah.

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Is there any way to change the terms that were set for guardianship of my daughter in Iowa? I was forced into this by my ex’s sister when he passed away. I was approached by her lawyer after my ex’s funeral. She had already hired an attorney.

If the child is in Iowa and the guardianship was ordered in Iowa, then jurisdiction is likely in Iowa, and you’d need to consult an attorney who licensed to practice law in Iowa and who has expertise in guardianship law in that state.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Is-there-any-way-to-change-the-terms-that-were-set-for-guardianship-of-my-daughter-in-Iowa-I-was-forced-into-this-by-my-exs-sister-when-he-passed-away-I-was-approached-by-her-lawyer-after-my-exs-funeral-She-had/answer/Eric-Johnson-311

The post Can I Change Terms of Another State’s Guardianship? appeared first on Divorce Utah.

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2019 UT App 24

THE UTAH COURT OF APPEALS

BOUNTIFUL CITY,
Appellee,
v.
NATHAN DAVID BAIZE,
Appellant.

Opinion

No. 20170155-CA

Filed February 14, 2019

Second District Court, Bountiful Department

The Honorable Glen R. Dawson

No. 161800370

Scott L. Wiggins, Attorney for Appellant Jacob L. Fordham, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1        Utah’s criminal law recognizes that a parent may discipline a child. Criminal sanctions may attach, however, when parental discipline exceeds the bounds of reasonableness or where serious physical injury results. After a bench trial, during which the court heard evidence that Nathan David Baize spanked his four-year-old son with enough force to leave a bruise in the shape of a handprint, the court found Baize guilty beyond a reasonable doubt of misdemeanor level child abuse. Baize appeals, claiming the court misconstrued the facts and misapplied the law. We affirm.

BACKGROUND[1]
The Incident of Abuse

¶2        In late June 2016, Baize had his four-year-old son (Victim) for weekend parent-time. Baize and Victim’s mother (Mother), are divorced and have joint custody of Victim. Victim spends every other weekend with Baize.

¶3        On the weekend in question, Victim had been acting up, and Baize and Mother exchanged emails about this behavior. Mother recalled that the emails described Victim as “yelling and screaming, washing out. He was saying terrible things, he was going to hurt people. He was mad. He wanted to go home. He was upset. Completely distraught.”

¶4 Victim was “throwing temper tantrums, using foul language, [and] saying that he wanted [Baize] dead” on the day of the abuse. The bad behavior escalated during a car ride to a grocery store. Victim began kicking and punching his grandmother, who was with Baize and Victim. It took about an hour to calm down Victim enough to get him strapped in his car seat. Even then, Victim continued to jump up and down, “slamming his rear end on the bottom of the car seat.”

¶5        Once they got home, Victim continued to fight with Baize. After trying various disciplinary interventions, Baize determined that his last resort was to spank Victim. Baize put Victim over his knee and warned him that he was going to be spanked unless he calmed down. When Victim continued to swear and tell Baize that he hated him, Baize spanked him one time. Baize gave Victim additional warnings, and then spanked him a second and third time.

¶6        Eventually, Baize called Mother and asked that she pick up Victim several hours earlier than the planned exchange. While changing Victim’s clothes that evening, Mother noticed bruising on his bottom. When she asked Victim what had happened, he responded, “Don’t talk to me about this,” and requested that everyone leave his room. A few minutes later, Victim disclosed to Mother what had happened. Mother immediately called the Division of Child and Family Services (DCFS).

¶7 The next morning, Mother took photographs of the bruising on Victim’s bottom, one of which was introduced as evidence. Mother testified that the photograph accurately depicted the injuries she saw on Victim: “I see fingerprints. I see, that are bruised, bruising, fingerprints. There are lines on his bottom, bruising. There [are] little spots on his bottom that are bruised.” Mother stated that she “was pretty sick to [her] stomach” when she saw Victim’s injuries.

¶8 An investigator from DCFS came by the day after the spanking and advised Mother to call the police about the incident. A detective (Detective) from the Bountiful City Police Department was assigned to the case. Detective arranged an interview for Victim at the Children’s Justice Center (CJC Interview). After viewing the photographs and hearing Victim’s CJC Interview, Detective determined that he needed to interview Baize.

¶9        Detective testified that the photograph introduced at trial depicted signs of redness consistent with diaper rash on Victim’s bottom, but he also observed that it showed a yellowish bruise in the shape of “a finger or a handprint.” Detective noted that there were no reports indicating that Victim needed medical attention for injuries related to the abuse. Detective also testified that Baize appeared to be in control of what he was doing when he spanked Victim.

¶10 Bountiful City (the City) charged Baize with child abuse in violation of Utah Code section 76-5-109(3)(c). Baize pled not guilty and requested a bench trial.

The Proceedings

¶11 The City argued that it is not “illegal or wrong” to discipline a child by spanking, but “when you spank a child to the point where there is physical injury is where you come to a Class C misdemeanor child abuse.” The City said that Baize “should be aware that there may be bruising, that [he] may injure a child. [He is] putting [his] hands on a child. It’s obvious to all of us that there’s a risk that [he] may injure the child if [he] spank[s] the child too hard.” The City further noted that it was not arguing that Baize “committed child abuse by spanking [Victim], once[,] twice[,] or three times. That’s . . . within his realm as a parent to do. However, it’s clear that he left an injury on the child. A handprint on the child’s behind, buttocks is clearly caused only by spanking.” The City concluded, “We are not here to stand up and tell the defendant how to parent his child or whether spanking is right or wrong. None of that is in play. It comes down to the fact that while disciplining his child [he] left a handprint on him, bruised him . . . . That’s it.”

¶12 Baize’s trial counsel argued that spanking Victim “was not a gross deviation from the standard of care based on facts [and] specific evidence that [was introduced]. . . . [T]his spanking was not done out of anger. It was in a controlled manner. And it was as a result of trying to help the child calm down and get under control.” Rather than admitting he struck Victim too hard, Baize’s counsel argued that “[Baize] did not take an unjustifiable risk to cause bruising.” Rather, “as a parent, the only way that he had left [to discipline] in his repertoire . . . [was] telling [Victim] what he was going to do and then stopping after he had done it to the point where he thought that was enough. That is not a gross deviation from the standard of care.”

¶13 After hearing the evidence, including testimony from Mother and Detective, and after hearing the arguments, the court concluded:

The statute involved as we all understand is [Utah Code section] 76-5-109. Any person who inflicts upon a child physical injury—I’m just reading the pertinent part—is guilty of an offense as follows. Part C, if done with criminal negligence the offense is a Class C misdemeanor. And, again, I previously read the definition of criminal negligence. I won’t read that again. It is the lowest of the four mens rea standards that are recognized in Utah State law.

I further note that physical injury is defined under [section] 76-5-109. And I’ll just read a small part of that. “Physical injury means an injury to or a condition of the child which impairs the physical condition of the child, including, 1, a bruise or other contusion of the skin.” There are other— there is a further definition of physical injury, but I’m just going to stop there for purposes of this case.

The court continued:

[C]ertainly, a parent should be allowed to discipline his children in an appropriate way. But the level of contusion, the bruising on the buttocks of the child causes me to come to the conclusion that discipline was a gross deviation from the standard of care that an ordinary person would exercise. It was just too hard. It was too hard. And in light of that, I will enter a judgment for a conviction for the Class C misdemeanor, inflicting physical injury on a child with criminal negligence, finding proof beyond a reasonable doubt based on the testimony of the two witnesses.

¶14      The judgment on the verdict was entered, and Baize was sentenced. Baize now appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Baize raises two issues on appeal. First, Baize claims that the district court misinterpreted and misapplied Utah Code section 76-5-109 by concluding that he committed child abuse. “The correct interpretation of a statute is a question of law and is reviewed for correctness.” State v. Larsen, 865 P.2d 1355, 1357 (Utah 1993). Because it was not preserved at trial, Baize raises this issue pursuant to plain error. To establish the existence of plain error, Baize must show “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).

¶16      Second, Baize claims that his trial counsel deprived him of effective assistance by failing to raise a defense of justification as provided in Utah Code section 76-2-401. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).[2]

ANALYSIS

  1. Interpretation and Application of Utah Code Section 76-5-109
  2. The Statute’s Plain Language

¶17 On appeal, Baize argues that the district court erred in interpreting and applying Utah Code section 76-5-109. Specifically, Baize asserts that “the court failed to read subsections (3) and (8) together as required by the language of the statute.” Had the court properly considered the two subsections, Baize contends, it would have concluded his actions were justified and did not constitute child abuse.

¶18 “When interpreting statutes, we determine the statute’s meaning by first looking to the statute’s plain language, and give effect to the plain language unless the language is ambiguous.” State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (cleaned up). In addition, “the plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters.” Id. (cleaned up). Contrary to Baize’s assertions, we conclude that the district court engaged in just such an integrated analysis in reaching its decision that Baize committed child abuse.

¶19      The portion of the statute Baize violated states that “[a]ny person who inflicts upon a child physical injury or, having the care or custody of such child, causes or permits another to inflict physical injury upon a child is guilty of an offense . . . if [the injury is] done with criminal negligence.” Utah Code Ann. § 76-5-109(3)(c) (LexisNexis 2017).[3] “‘Physical injury’ means an injury to or condition of a child which impairs the physical condition of the child, including . . . a bruise or other contusion of the skin . . . .” Id. § 76-5-109(1)(e)(i).

¶20 Baize correctly asserts that Utah Code section 76-5-109(3) must be read in harmony with section 76-5-109(8), which states that “[a] person is not guilty of an offense under this section for conduct that constitutes: (a) reasonable discipline or management of a child, including withholding privileges; [or] (b) conduct described in Section 76-2-401.” Id. § 76-5-109(8)(a)−(b). Utah Code section 76-2-401 states that a “defense of justification” for alleged child abuse may be claimed when “the actor’s conduct is reasonable discipline of minors by parents, guardians, teachers, or other persons in loco parentis,” unless such conduct results in serious bodily injury, serious physical injury, or the death of the minor. Id. § 76-2-401(1)(c); see also id. § 76-2-401(2). Thus, the statutes create a structure where a parent-defendant may be convicted of child abuse when he causes physical injury to a child, including bruising, unless the conduct in question constituted reasonable discipline.[4]

¶21 Baize argues on appeal that the district court failed to undertake the “reasonable discipline” analysis required by Utah Code section 76-5-109(8)(a). Specifically Baize states, “There is nothing in the record demonstrating that the court read subsection (3) of section 76-5-109 together with subsection (8) as required by the plain language of the statute.”

¶22 We acknowledge that the court did not explicitly invoke the numbers of the two subsections in interpreting and applying the statute. But it is nevertheless clear from the record that the court conducted such an analysis in applying the statute to Baize’s conduct. The court stated:

[A] parent should be allowed to discipline his children in an appropriate way. But the level of contusion, the bruising on the buttocks of the child causes me to come to the conclusion that discipline was a gross deviation from the standard of care that an ordinary person would exercise. It was just too hard. It was too hard.

(Emphasis added.) Accordingly, the court focused on the fact that Baize was Victim’s parent, a status which is relevant under Utah Code section 76-5-109(8).

¶23 While the court never explicitly said Baize’s spanking of Victim was “reasonable” or “unreasonable,” it did say his conduct was “a gross deviation from the standard of care that an ordinary person would exercise.” This is simply a variation in nomenclature describing the concept of reasonableness. If anything, the court’s finding is more specific than simply saying the word “unreasonable.” We therefore consider Baize’s argument that the district court failed to read the two subsections together to be overly simplistic. Baize ignores that the district court did undertake such an analysis, albeit using different but equivalent language than that promoted by Baize. And because the district court analyzed Baize’s conduct and determined that it was a “gross deviation” from the ordinary “standard of care,” we conclude that the court considered the “reasonable discipline” analysis required by Utah Code section 76-5-109(8).

  1. Reasonable Discipline of a Child

¶24 Alternatively, Baize argues that “the court’s determination that the spanking of [Victim] was unreasonable is contrary to common law principles that dictate punishment and chastisement are to be considered in light of the age, condition and disposition of the child, and other surrounding circumstances.” Baize would have us understand that “discipline by a parent—under circumstances such as that in the instant case—is reasonable so long as the discipline is administered in a good faith manner that does not inflict serious physical injury on the child.” In essence, Baize argues that parental discipline is reasonable provided that it (1) is done in good faith and (2) does not cause serious bodily injury.

¶25 We reject Baize’s attempt to define reasonable parental discipline. First, nowhere do the statutes in question use the language, “administered in a good faith manner,” as a standard for reasonableness. Baize has attempted to add a “good faith” prong to the reasonableness standard without directing us to supporting case law or other legal authority. Second, Utah Code section 76-5-109 explicitly states that any person who inflicts “physical injury” on a child is guilty of an offense. Utah Code Ann. § 76-5-109(3) (LexisNexis 2017). In no way do any of the statutes in question suggest that parental discipline resulting in mere physical injury to a child is by definition reasonable, while only discipline resulting in serious physical injury is unreasonable. Rather, the statutes simply establish that the defense of justification is unavailable to a parent who causes serious physical injury in disciplining a child—not that inflicting something less than serious physical injury is always reasonable. See id. § 76-2-401(1)–(2). Thus, we decline to follow Baize’s logic to the inevitable conclusion that a parent who physically injures his child while inflicting discipline in good faith must be acting reasonably.

¶26 Thus, we conclude that the district court did not plainly err in its interpretation and application of the relevant statutes.

  1. Ineffective Assistance of Counsel

¶27 Baize argues that his trial counsel deprived him of his right to effective assistance of counsel by failing to bring the justification defense identified in Utah Code section 76-2-401 to the district court’s attention. The United States Supreme Court established a two prong test to determine if counsel’s performance is deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The test, as expressed by our supreme court, requires a defendant to “show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel’s performance prejudiced the defendant.” Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). But “[i]t is not necessary to address both parts of the test when the defendant makes an insufficient showing on one.” State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 153. Because we conclude that Baize has failed to show his counsel performed deficiently, we limit our analysis to the first prong.

¶28 Baize asserts that his counsel’s ineffective assistance is demonstrated by the district court’s failure “to read and analyze subsection (3) of section 76-5-109 together with subsection (8).” Baize argues that his counsel “failed to recognize the requirement of reading these provisions together.” Yet Baize admits that his counsel’s “arguments at closing . . . . were essentially consistent with the defense of justification.”

¶29 Baize’s ineffective assistance argument is without merit precisely because his trial counsel—as Baize admits—argued for a justification defense and the district court considered justification as provided for in Utah Code section 76-5-109(8). See supra ¶ 23. Trial counsel stated that Baize did not “take an unjustifiable risk to cause bruising . . . . [T]he only way that he had left [to discipline] in his repertoire . . . [was] telling [Victim] what he was going to do and then stopping after he had done it to the point where he thought that was enough. That is not a gross deviation from the standard of care.” As with the analysis of the district court, trial counsel was under no obligation to refer to specific sections of the Utah Code in making the justification defense argument. It is evident from the record that Baize’s trial counsel effectively communicated the existence of the justification defense without making explicit reference to the subsections of the statute. Thus, we conclude that Baize has failed to show ineffective assistance merely because his trial counsel did not explicitly and simultaneously invoke specific defenses available under Utah Code section 76-5-109(8).

CONCLUSION

¶30 Baize’s argument that the district court misconstrued the facts and misapplied the law fails. On the record here we see no error in the district court’s analysis, and we further conclude that Baize has failed to show deficient performance by his attorney.

¶31 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277

———————-

[1] On appeal, we construe the facts in the light most favorable to the verdict. See State v. Miller, 2017 UT App 171, ¶ 2 n.1, 405 P.3d 860.

[2] In a separate rule 23B motion filed simultaneously with his brief, Baize seeks remand to the district court to make findings and conclusions that his trial counsel was ineffective in failing to investigate and research the CJC Interview. “A remand under rule 23B will only be granted upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164 (cleaned up). And to “prevail on grounds of ineffective assistance, a defendant must demonstrate, first, that counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment, and second, that counsel’s deficient performance was prejudicial—i.e., that it affected the outcome of the case.” State v. Hand, 2016 UT App 26, ¶ 2, 367 P.3d 1052 (cleaned up). Nowhere in Baize’s motion does he demonstrate nonspeculative facts that would support a determination that trial counsel was ineffective or any resulting prejudice. The motion and accompanying affidavit make conclusory allegations that the CJC Interview contained critical evidence, but nowhere does Baize identify that evidence. Thus, we decline to grant remand on Baize’s separate rule 23B motion.

[3] Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code.

[4] As the statute makes clear, the defense is available if the conduct is (1) reasonable and (2) results in only physical injury. Utah Code Ann. § 76-2-401 (LexisNexis 2017); see also id. § 76-5-109(1)(e) (defining physical injury). The defense is unavailable for reasonable discipline that results in serious bodily injury, serious physical injury, or the death of a minor. See id. § 76-2-401(2); see also id. § 76-1-601(11) (defining serious bodily injury); id. § 76-5-109(1)(f) (defining serious physical injury).

The post 2019 UT App 24 – Bountiful City v. Baize – child abuse vs. discipline appeared first on Divorce Utah.

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