Gardner v. Gardner, 2012 UT
App. 374, Utah Court of Appeals, December 28, 2012
In the Original Divorce, Wife was awarded the parties marital home
and was ordered to make the payments on the home and hold Husband harmless in
regards to the debt. Wife failed to make
several payments. Husband filed an Order
to Show Cause and a Petition to Modify.
Husband’s Petition to Modify was denied and Court refused to hold wife
in contempt. Husband Appeals.
The trial court found that Decree’s hold harmless provision only
required her to make the payments and not expect any payment from Husband. The Court of Appeals disagreed and found that
a hold harmless provision implies a much stronger obligation than to just make
payments. It also requires the paying
party to protect the other party from any damage that may result from late
payments.
The trial court also found that Husband’s damages because of his
lower credit score and suspension of credit because of the missed payments were
extremely speculative and he could not prove any real damages. However, Husband
requested attorney fees. Attorney fees
are not speculative in nature and a real number can be placed on that
expense. Further, Husband asks for an
order requiring Wife to refinance the home.
No finding of damages are required to enter an order requiring Wife to
refinance. Reversed and Remanded.
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