Founrn Drcrrucr JUvENILE Counr

Fon Urnu Couxtv, Srlre or Urlx

ln the interest of:

WOLFERTS, Sydney (5-24-1999)

WOLFERT$, Daniellc (l 0-29-2000)

Childrcn undereighteen years old.

COURT'S DECISION REGARDING"MOTION TO MAKE FINDINGS ANDCONCLUSIONS OF LAw'

Case Numben I102018 and I102019

Judge Brent H. Bartholomew

Normally, a motion for more specific findings would be frled after this Court's written

orderhad been issued. Ron Wilkinson, Brian Wolferts'attorney, was instructed by this Court to

prepare a proposed order from the hearing held July I t,2014, and to date it has not been filed.

Nonethelessn this Court has decided to address its previous decisions and actions for this matter

in this "Court's Decision Regarding'Motion to Make Finditrgs and Conclusions of Law."'

Mr. Wilkinson should include in the proposed order he prepares the following findings of fact

and concltsions of law, along with any others that are pertinent from the hearing.

CASE HISTORY

l. On June 26,2014,a "Petition for Determination of Abuse & Neglect and Transfer of

Custody, and Related Matters" was filed with this Court (although proof of service has not been

submitted to this Court) requesting in part, that it:

a. Alyard legal custody of the minor children to Ms, Wolferts, who prcviously in

the petition is identified as the minor children's mother (see page 3, X 5);

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b. Appoint a Guardian ad Litem for the minor children; and

c. "Request that DCFS provide CPS assistance . . . ."

Pages 27A8,nT 1,3,5, and 7.

2. On June 30,20l4,a "Verified Motion for f* Parte Emergency Temporary

Restraining Onder, Appointment of GAL, and Sening of Expedited Hearing" was filed with this

Court.

3. Based upon th€ representations made in the aforementioned documents, on June 30,

2014, the Court signed an "Order Granting Temporary Restraining Order, Appointment of GAL,

and Setting of Expedited Hearing." In part, the Court's order provided that:

a. Until the scheduled court hearing, the minor children should remain in the

custody of their mother, "who is exercising her summer parent-time pursuant

to Uah Code $ 30-3-37.'

b. A Guardian ad Litem be appointed to represent the minor children.

c. A hearing be held on July I1,2014, at 3:30 pm.

4. On July 7,2013,an "Expedited Er Parte Motion to Dismiss Ex Parte Ordern'and

supporting documentation was filed with this Court by Ron Wilkinson on behalf of his client,

Brian lVol ferts, father.

5. On July 8, 2014, this Court entercd a "Response to Expedited Er Parte Motion to

Dismis Ex Parle Order,'n indicating:

The pleadings submined July 7, 20l4,on behalf of Mr. Wolferts indicated thatSandra Dredge, Special Master, has been involved with the district court case, but they donot include a special master order nor do they specify if Ms. Dredge received a copy of

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the pleadings and what her recommendations for the handling the current situation wouldbe.

Page l-2.

By doing so, this Court was seeking verification and clarification as to what authority the

special master had and whether she was cunently involved with the disrict court cas€ before

taking any action to modiff the original ex parte order.

Subsequently, on July 8, z}l4,"Affrdavit of Sandra Dredge," along with a copy of the

special master order, was filed with this Court.

6. On July 8, 2014, this Court entered an "Order on Expedited Er Parte Motion to

Dismiss ExParteOrder" as well as an "OrderAppointing GAL and Notice ofCW-Pretrial

Hearing."

7. On July I l, 2014, the day of the court hearin& the following were filed with this

Court:

a. "Notice of Appearance of James G. Clark as Counsel for Petitioner";

b. "Memorandum in Support of Motion to Snike Affidavit of Sandra Dredge,"

which indicated that Ms. Dredge and Ron Wilkinson had been e-mailed that

document on July I l, 2014 (there was no separate motion to strike filed with

this Court, althougb the memonndum asks for relieO; and

c. "Declaration of Dr. Randy Hyde."

8. Dgring the hearing held July ll,z}l4,the Court reafrirmed its previous appointment

of a Guardian ad Litem to reprcsent the minor children.

9. Although on July I8,2014, this Court entered and sent out a "Utah R. Civ. P. 100

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Notice," it has not yet called the Honorable Cluistine Johnsorq District Court Judge, to discuss

with her the merits of the juvenile court and district court cases. On the same date, this Court

also sent a copy of Brittany Wolferts' petition to Child Protective Services intrke.

10. On July 18, z0l{,James Clark, Counsel forBrittany Wolferts, filed a "Motion to

Make Findings of Fact and Conclusions of Law."

ADDTTIONAL FINDINGS OF FACT

l. On June 26,2014,"[a] referral was made to the Division of Child and Family

Services prior to filing the "Petition for Determination of Abuse, Neglect and Transfcr of

Custody, and Related Matters." ,See page 2, fl 3; see also page 6, { 2 I . On that same day, a copy

of the petition was provided "to an Assistant Attomey General for DCFS." See ld. page 6, !f 21.

2. Brian Edgar Wolferts, father, "presently lives at 6705 SW 28o Street, Topekq

Kansas," having relocated there from Pleasant Grove, Utatr County, State of Utah since on or

about December 27,2013. The minor children have resided with Mr. Wolferts since that time.

See id. at page 3, T 4.

3. Ms. Wolferts, mother, is the non-custodial parent of the above-named minor children

and presently lives at l2l5 South 620 West, Oremn Utalr, along with Brittany Wolferts, an adult

daughterof the Wolferts and sister to the above-named minor children. See td. at page 3, uT 5'6.

4. Qrr June 15,2007,a bifurcated divorce was granted to Mr. and Ms. Wolferts by the

Fourth Disrict Court, Utah County, State of Utatr. See id. at page 4,1l I l. Afterward,

unresolved issues were tied and the final documents to conclude the Wolferts divorce were

signed and entered on December 5,2007. See id. at page 4, flu l l-12.

5. Several months after entry of the final divorce decree, Ms. Wolferts filed to amend

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the decrce. See id. at 4, t[ 14. On May 12, 2010, after Ms. Wolferts sought to modiff the divorce

decree and "prolonged litigation," physical and legal custody of the Wolferts childrcn were

EansfEnd to Mr. Wolfere. See id. at page 5, fil l5-16. "Thereafter, the children resided with

Mr. Wolferts and had statutory visitation with Ms. Wolferts.' Id. atpage 5, !J 17.

6. After it signed and entered the "Order Granting Temporary Restraining

Order, Appointment of GAL, and Setting of Expedited Hearing," this Court subsequently learned

as a result of the filing of the *Expedited h Parte Motion to Dismiss Ex Parte Order" and

supporting documents:

a. Mr. Wolferts was rcprcsented by an attorney when the ex-prte motion was

submitted by Brittany Wolferts through her attomey, Matt Hilton.

b. Therc was an evidentiary hearing scheduled in Fourth District Court,

American Fork Department, Utah County, State of Utah regarding the above-

named minor children scheduled for September 4-5, 2014.

c. The case number for the district court case.

d. A special master had been appointed in the district court case.

7. Mr. Hilton knew of specific information regarding the district court case including,

but not limited to: Mr. Wolferts having an attorney, the appointment of the spccial master, and

the disfict court evidentiary hearing, as he had been involved with the district court case. ,Sse

Fourttr Disnict Court rccords. Nevertheless, Mr. Hilton failed to disclose pertinent information

from this Court.

8. This Court rcviewed Brittany Wolferts' motion and the supporting materials late

June 30, 2014. This Court was unaware at that time of Mr. Wolferts' telephone number because

it nras not included in the filed pleadings (so he was not cont{rcted). Moreover, the pleadings did

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not include any information that Mr. Wolferts' had an attomey, nor of attempts to contagt

counsel (consequently, Mr. Wilkinson law offrce was not contacted). Furthermore, Mr. Hilton

represented in the materials he filed that he was having serious medical problems and would not

be available for this case from that time forward. If this Court had been provided Mr. Wolferts

telephone number or this Court had known Mr. Wolferts' was rcpresented by Mr. Wilkinson's

office, it would have contacted either Mr. Wolferts' or Mr. Wilkinson to get therc side of the

story. This Court signed the original ex parte order on June 30, 2014, to allow time for Mr.

Wolfelts being contracted before his family rcunion commenced.

9. Had Mr. Hilton simultaneously filed Brittany Wolferts' ex parte motion with

her petition when it was filed with the Juvenile Court on June 26,20l4-and had not witlrheld

pertinent information from this Court-this Court would have had the opportunity to discuss

Brittany Wotferts' ex parte motion with both attomeys before making a decision.

CONCLUSIONS OF LAW

This Court now makes the following conclusions:

l. The reason for this Court dismissing the original ex Wte order was that it was

improperly obtained. Matt Hilton, Brittany Wolferts' attomey, knew that Mr. Wolferts was

rcpesented by legal counsel, yet this information was concealed fhom this Court. Had this

information been properly submitted, the Court would have contacted Mr. WolferG' attomey and

obtained relevant information germane to whether it should have signed the original ex parle

order.

2. Brittany Wolferts also knew or coutd have easily found out and should have known

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Mr. Wolferts was represented by counsel before seeking anex parte order. Brittany lives with

her rnother, used the same attorney as her mother, and was seeking custody of the minor childr€n

for Ms. Wolferts.

3. Even though the original ex parte order was dismissed, Mr. Wolferts missed the

family rcunion with his children and the children remained with Ms. Wolferts. In essence,

Brittany Wolferts still got relief she sought-preventing Mr. Wolferts from taking the minor

children on his family reunion.

4, On July 8,2014, an order was entered appointing a Guardian ad Litem to represent

the minor children and that appointment was confirmed at the hearing on July I l, 2014. The

Cowt expects the GAL to talk with the minor children, as well Briilany Wolferts and the parents

with their respective counselns permission, and take appropriate action on behalf of the minor

children.

5. One of the neasons the hearing on July I l, 2014 was not vacated is because this

Court had no way of knowing until the day of the hearing that Brittany Wolferts was represented

by counsel. In a pleading filed on herbehalf by Mr. Hilton, Brittany had requested that counsel

be court appointed for her, which cannot be done for non-state commenced actions. Another

purpose the July I I hearing fulfilled was to confirm that this Court still expected the Guarrdian ad

Litem to look after the best interests of the children.

6. Withholding information from this Court, the tirning of Brittany Wolferts' er patle

motion, and her attempting to seek custody of the minor children for her mother through thc

juvenile appears as if Brittany Wolferts was attempting to fonrm shop for her mother.

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7. Whether or not the special master's tpcommendations are sticken is irrelerrant to this

Court's dismissing the original ex parle order and cannot circumvent that relevant information

withtreld from this Court and Brittany Wolferts appears to have been forum shopping for her

mom. This Court has not ruled on the request to strike the special master's affidavit because the

time for responding has not expired and a request for a decision has not been filed.

8. At the hearing on July I l, 2014, this Court was premature in scheduling a prefial

date without service being properly rendered upon Mr. Wolferts, so it is reasonable and proper

for tfiat pretrial date to be vacated. Nevertheless, another pretrial date may be scheduled for a

date and time after Mr. Wolferts has been properly served and given the requisite time to respond

to Brittany Wolferts' petition.

9. Utatt R. Civ. P. 100 (b) and (c) states:

The judge or commissioner assigned to a case in which child custody, chrldsupport, or parent lime is an issue shall communicate and consult with any otherjuiie or commission assigned to any other pending case involving the same issuesand the same parties or their children. The objective of the communicationis to the consider the feasibility of consolidating the cases before one judge orcommissioner or of coordinating hearings and orders.

The judges and commissioners rnay allow the parties to participate in thecommunicaiion. If the parties have not participated in the communication, the partiesshall be given notice and the opportunity to present facts and arguments before adecision to consolidate the calies.

(EnPhasis added-)

The district court and juvenile cases both addrcss the issue of what time the same minor

children should spend with their parents. This Court has not yet discussed the merig of either

case with Judge Johnson. Therc is no reason to do so until hlr. Wolferts has been properly

served and the time has elapsed for responding to Brituny Wolferts' most recent pleading. See

..Motion to Make Findings and Conclusions of Law," C. Communication with Judge Johnson,

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bustody or parent time issues, the judges of pending cases "shall communicate and sonsulf'with

one another." ,See fl (a). The purpose of such communication is to avoid duplicate or

contradictory court rneasures. In the ptrocess, the judges may or may not "allow the parties to

participate in the communication." /d.

Dated this 27 day of July, 2014.

Filed: 28 JULY 2014FOURTH DISTRICT JUVENILE COURT

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BY THE COURT: