Friday, March 15, 2013

Order to Show Cause: Burden is on Moving Party

Black v. Black, 2012 UT App. 259, Utah Court of Appeals, September 20, 2012

Husband and Wife came to an agreement as to ongoing disbursements from a film company.  Husband was to prepare an accounting of each disbursement along with a portion of the payment to wife.  Wife was dissatisfied with the accounting and filed an order to show cause against Husband.  The Commissioner did not hold Husband in contempt and found based on the evidence presented that Husband was in substantial compliance.  Wife objected to the recommendation. 

The Judge received oral argument overruled the objection (affirmed the commissioner’s ruling) and awarded Husband $500 in attorney fees.  Wife appealed.

The Court of Appeals found that it was Wife’s burden to show that Husband knew of the order, had the ability to comply, and failed to comply; and she must do so by clear and convincing evidence.  In this case, the Court found that Husband was in substantial compliance.  Wife asserted that the trial court should have placed the burden on Husband to show that he was in compliance.  The Court of Appeals disagreed with Wife and found that the burden shifts only in instances when a party argues inability to comply, which is essentially an affirmative defense.  In this case, Husband did not argue that he was unable to comply; instead, Husband’s argument was that he was in compliance.  The Court of Appeals agreed with Husband.

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