Ron D. 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 Attorneys for Father

IN THE FOURTH JUDICIAL DISTRICT JUVENILE COURT IN AND FOR

UTAH COUNTY, STATE OF UTAH

IN THE INTEREST OF: Wolferts, Sydney (05-24-1999) Wolferts, Danielle (10-29-2000), Children under eighteen years old.

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS

Case No.: 1102018, 1102109 Judge: Brent H. Bartholomew

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

& Neglect and Transfer of Custody, and Related Matters (Petition).

2. This matter involves custody of two (2) children, Sidney Wolferts (age 15) and

Danielle Wolferts (age 14).

3. Brian Wolferts (Father) is the natural father of the subject minor children.

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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

Wolferts was previously residing with Mother.

8. 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. Soon thereafter, the minor children disappeared.

10. The minor children are still missing.

11. In October 2014, Father was served with Brittany’s Petition.

12. On October 15, 2014, this Court ordered that “Brittany Wolfert’s [Petition] shall

be dismissed without prejudice if proper service is not rendered upon Brittany’s parents within

120 days from when her petition was filed.”

13. As of October 24, 2014, Brittany has not served the petition on Mother.

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ARGUMENT

This Court should dismiss Brittany’s 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 Brittany’s pending petition.

I. THIS COURT DOES NOT HAVE JURISDICTION OVER THE SUBJECT MINOR CHILDREN.

Pursuant to Rule 12(b)(1) of the Utah Rules of Civil Procedure, this Court may dismiss

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 Court’s

jurisdiction, the action must be filed in the Fourth Judicial District Court in case number

074100003.

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Furthermore, Utah Code § 78A-6-110(1) provides that under the Juvenile Court Act that

“Proceedings in minor’s cases shall be commenced in the court of the district in which the minor

is living.”

In this matter, it is undisputed that the Court’s orders provide that the minor children

reside in Father’s 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. BRITTANY HAS FAILED TO SERVE THE PETITION CONSISTENT WITH THIS COURT’S ORDERS.

The law of the case doctrine provides that “a decision made on an issue during one state

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 finality—but 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 Court’s

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

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did nothing to attempt service on Mother for a full 120 days. It is appropriate for this Court to

dismiss Brittany’s Petition for failure to serve.

CONCLUSION

For the reasons stated herein, Father requests that this Court dismiss Brittany’s Petition

filed with the Juvenile Court. Father requests such further relief as this Court deems just and

equitable.

DATED: October 29, 2014. /s/ Ron D. Wilkinson Ron D. Wilkinson, Attorney for Father

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

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