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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