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:

MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS

Wolferts, Sydney (05-24-1999)
Wolferts, Danielle (10-29-2000),
Case No.: 1102018, 1102109
Judge: Brent H. Bartholomew

Children under eighteen years old.

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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