Thursday, August 8, 2013

Hold Harmless Provision in Decree = to Absolve Other Party From All Responsibility and Damage on A Debt.

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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