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Wilkinson (5558)
Nathan S. Shill (11961)
HERITAGE LAW OFFICES
898 South State Street, Suite 100
Orem, UT 84097
Telephone: (801) 225-6040
heritagelaw.rdw@gmail.com
MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS
Brian Wolferts (Father) through his attorney, Ron D. Wilkinson, submits this
Memorandum in Support of Motion to Dismiss the Petition for Determination of Abuse &
Neglect and Transfer of Custody, and Related Matters filed by Brittany Wolferts (Brittany).
FACTS
1.
On June 26, 2014, Brittany Wolferts filed a Petition for Determination of Abuse
This matter involves custody of two (2) children, Sidney Wolferts (age 15) and
Brian Wolferts (Father) is the natural father of the subject minor children.
4.
Sonja Michelle Wolferts (Mother) is the natural mother of the subject minor
children.
5.
Brittany Wolferts (Brittany) is the adult daughter of Mother and Father. Brittany
Wolferts filed a petition for abuse and neglect on behalf of her sisters.
6.
At the time the petition was filed, the permanent residence of the subject minor
children was in Topeka, Kansas. The minor children were exercising parent time in Utah with
Mother.
7.
Brittany sought custody of the minor children being awarded to Mother. Brittany
On or about July 11, 2014, this Court had a pretrial conference on the pending
petition. At that time, neither the Father nor the Mother was served with the petition. The Court
continued the pretrial conference.
9.
10.
11.
12.
On October 15, 2014, this Court ordered that Brittany Wolferts [Petition] shall
be dismissed without prejudice if proper service is not rendered upon Brittanys parents within
120 days from when her petition was filed.
13.
As of October 24, 2014, Brittany has not served the petition on Mother.
ARGUMENT
This Court should dismiss Brittanys Petition for several reasons. First, this Court does
not have jurisdiction to hear this matter. Second, Brittany has failed to effectuate service within
120 days as ordered by this Court. For the reasons stated herein, Father requests that this Court
dismiss Brittanys pending petition.
I.
for lack of jurisdiction over the subject matter. In her petition, Brittany relies on the provisions
of the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in arguing that
the Juvenile Court has jurisdiction over her petition seeking custody of the minor children being
transferred to Mother.
Utah Code 78B-13-202(a) provides that a court of this state that has made a child
custody determination has exclusive, continuing jurisdiction over the determination. The
initial custody determination was made by the Fourth Judicial District Court in case number
074100003. As such, the plain language of the statute provides that the Fourth District Court in
case number 074100003 maintains exclusive continuing jurisdiction over determination of
custody. Brittany cannot utilize this initial custody determination to file a new action in the
Juvenile Court in the State of Utah. If Brittany is relying on the UCCJEA for this Courts
jurisdiction, the action must be filed in the Fourth Judicial District Court in case number
074100003.
Furthermore, Utah Code 78A-6-110(1) provides that under the Juvenile Court Act that
Proceedings in minors cases shall be commenced in the court of the district in which the minor
is living.
In this matter, it is undisputed that the Courts orders provide that the minor children
reside in Fathers primary custody in the State of Kansas. Brittany has provided this Court with
no evidence that the minor children are living in the State of Utah. As the minor children are not
living in Utah, this Court does not have jurisdiction over this matter.
II.
of a case is binding on successive stages of the same litigation. IHC Health Services, Inc. v.
D&K Management, Inc., 2008 UT 73, 26. The law of the case doctrine allows a court to
decline to revisit issues within the same case once the court has ruled on them. Id. The law of
the case doctrine acts much like the doctrine of res judicata-furthering goals of judicial
economy and finalitybut within a single case. Id.
The law of the case in this matter is that Brittany was ordered to effectuate service on
both Mother and Father by October 24, 2014 or her petition shall be dismissed. The Courts
ruling is consistent with the Utah Rules of Civil Procedure that service must be effectuated
within 120 days. To date, Brittany has not served Mother with her Petition. Brittany moved the
Court on October 24, 2014 for alternative service, but her motion was too little too late. Brittany
did nothing to attempt service on Mother for a full 120 days. It is appropriate for this Court to
dismiss Brittanys Petition for failure to serve.
CONCLUSION
For the reasons stated herein, Father requests that this Court dismiss Brittanys Petition
filed with the Juvenile Court. Father requests such further relief as this Court deems just and
equitable.
DATED: October 29, 2014.
CERTIFICATE OF SERVICE
I certify that on October 29, 2014, I emailed a true and correct copy of the foregoing
Order on Motion to Dismiss to the following:
James G. Clark
james@jamesclarklaw.com
Trent V. Cahill
tcahill@esplinweight.com
T. McKay Stirland
Guardian ad Litem
mckays@utcourts.gov
Sandra Dredge
Special Master
sandra@dredgelaw.com
/s/ arh