Court Can Modify Decree without Evidentiary Hearing. Commissioner Cannot Modify Property Agreements Under Rule 106.

Gullickson v. Gullickson, 2013 UT App 83 Utah Court of Appeals April 4, 2013

Wife intended to relocate and filed a Petition to Modify.  Husband opposed Wife’s removal of the child from Utah.  Wife’s Petition to Modify requested the Decree be modified to accelerate the sale of the marital home.  At the hearing, the Commissioner permitted the relocation and recommended modifying the Decree to allow Wife to rent out the home or, accelerate the sale of the home.  Father objected arguing that such a modification was not permitted by URCP 106 and requested an evidentiary hearing.  The Court overruled the objection and enforced commissioner’s order.  Father appeals.

The Court of Appeals found that Father was entitled an evidentiary hearing as to property and that no modification should be ordered without compelling reasons.  Further, the recommendation violated Rule 106.  Once a party demonstrates a circumstance not contemplated by the decree, the commissioner is no longer interpreting but modifying.  Further, the Court cannot modify a property award without an evidentiary hearing.  Court of Appeals vacated and remanded this issue.

As to relocation, the Court of Appeals advised that in relocation hearings, trial courts should address parent-time and transportation.  On objection, the trial court refused to hear witnesses relocation testimony. The Court of appeals affirmed on this issue and stated parties are limited by Rule 106, which limits the evidence on objection to the evidence that was presented before the Commissioner.

Husband also appealed the trial court’s refusal to hear the Order to Show Cause which commissioner had reserved ruling.  Court of Appeals found trial courts can choose to hear any matter, but is not required to if the issue has been reserved by Commissioner.

Davis Dissents as to the issue of review of objections by Judge—believes judge should have reviewed it.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/gullickson040413.pdf

Four Types of Non-Compliance-Based Attorney Fees Awards and Fault and Non-Compliance Cannot be Factors in Property Distribution

Goggin v. Goggin, 2013 UT 16, Utah Supreme Court, March 15, 2013

Husband and Wife Divorced.  Wife was awarded her all her attorney fees and receiver costs based on Husband’s actions of avoiding discovery and failing to comply with court orders.  Court did not distinguish between the fees awarded.  Wife also received a disproportionate distribution of property based on Husband’s dissipation of assets. Husband appealed.

The Supreme Court found that any fees that were related to failure to provide discovery, or fees incurred to enforce the order were appropriate.  The Supreme Court enumerated the four reasons a court can award fees for non-compliance: (1) Fees incurred enforcing an order, (2) Fees incurred under Rule 37 for the failure to comply with discovery, (3) Inherent Powers to reimburse parties for costs incurred defending bad faith actions, and (4) Inherent powers to sanction attorneys and litigants for bad behavior (i.e. Rule 11 sanctions).  However, the awards can never exceed the actual cost incurred by the innocent party. The Court Affirmed any award that was based on Husband’s bad acts, but Reverses any award for Wife’s out of pocket expenses in excess of reasonable attorney fees.

The trial court also found that Husband had dissipated marital assets, however instead of simply awarding wife her portion of the dissipated asset; the trial court awarded her the entire amount of the dissipated asset.  The Supreme Court Reversed and ordered that court equitably divide the marital estate, without considering Husband’s fault.   

Full opinion available at: http://www.utcourts.gov/opinions/supopin/Goggin1316031513.pdf

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.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/gardner520122812.pdf

Limiting Healthcare to Homeopathic Remedies Against the Other Parent’s Wishes = Sole Custody to Other Parent.

Clarke v. Clarke, 2012 UT App. 328, Utah Court of Appeals, November 23, 2012

At trial, Mother was awarded sole legal and physical custody of the parties minor children, was awarded 100% equity in the marital home, and husband was found in contempt.  Father appealed.

Father asserted that he was the primary caregiver and that the Court did not give proper weight to Mother’s conviction for custodial interference.  However, the Court of Appeals affirmed the trial court’s award of custody finding that Father’s antipathy to scientific medicines and his refusal to have the children immunized caused the court concern for the safety and health of the children.  Further, the Court made no finding as to which parent was the primary caregiver.  Parents worked opposite schedules and cared for the children while the other was at work.  Father could not show that the trial court abused its discretion in awarding Mother sole custody.

Court awarded Mother all the equity in the marital home to reimburse her for the inheritance she received and used to pay of Father’s premarital debt which Father agreed he should repay.  The Court affirmed the award and found that Mother should not lose the benefit of her inheritance simply because it was inverted into Father’s debt.

The Court found that there was adequate grounds for the finding of contempt, however, the Court reversed and remanded the calculation of attorney fees to be limited only to the fees accrued for the contempt hearing and not amounts accrued prior to contemptuous conduct.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/clarke112312.pdf

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.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/black59709202012.pdf

Contempt: Must Show Direct Harm to Appeal a Finding of Noncontempt of an Opposing Party

Summer v. Summer, 2012 UT App. 159, Utah Court of Appeals, June 1, 2012

Wife obtained a Temporary Order that required Husband to pay her health insurance. Husband failed to pay for the insurance.  The insurance cancelled her coverage. Husband was found in contempt. 

Husband and Wife agreed Husband reinstate the insurance.  Husband failed to do so and was found in contempt again, he was ordered him to serve the original 30 days for each contempt.  The parties also agreed that they would “look into filing a bankruptcy.”  Husband filed bankruptcy. Wife did not.

Husband appealed both the trial court’s failure to hold Wife in contempt for her failure to file bankruptcy.

The Court evaluated first whether a party has standing to appeal a failure of a court hold a person in contempt.  The Court determined in this case that because Wife’s failure to file bankruptcy resulted in a disproportionate property and alimony award, Husband did have standing because a finding of contempt on that issue could have decreased his alimony obligation and could have resulted in a more equitable property distribution.  However, because the agreement was only to “look into” filing bankruptcy, there was no requirement for wife to file bankruptcy. The Court of Appeals affirmed the trial court’s finding of noncotnempt.

  

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/summer060112.pdf

No Constitutional Right to Counsel in Civil Contempt Cases

Turner v. Rogers, 564 U.S. ____ (2011).

Turner had been found in contempt five times for failure to pay child support.  The fifth time Turner did not pay the amount owing and served 6 months.  After his release, the court issued another order to show cause and sentenced him to 12 months in jail without making a finding as to Turner's ability to pay.  He appealed.

Turner argued that he should have been provided counsel at the show cause hearing because there was a chance that he would be subject to incarceration.

The Supreme Court found that due process requirements are met and punishment can be imposed if the alleged contemnor is found to have had notice of the order, ability to comply with the order and willful noncompliance with the order.  No further safeguards are required, and if those safeguards are preserved the Court may impose jail time.

Full Decision available at http://scholar.google.com/scholar_case?case=8203402461706269179&hl=en&as_sdt=2&as_vis=1&oi=scholarr

A Party Cannot be Held in Contempt Unless the Order is Unambiguous

State of Utah v. L.A., 2010 UT App 356 (Utah Court of Appeals December 16, 2010).

Mother was held in contempt for failing to comply with an instruction from her minor child’s probation officer.   The parties agreed to assist their child in complying with all probations conditions including transporting the child to meetings with probation department, the juvenile court entered an order on their agreement.  The minor child tested positive for marijuana and the child’s probation officer instructed Mother to bring the child to the detention center.  Mother refused to take the child to detention and was found in contempt.  Mother Appealed.

The Court of Appeals found that the order instructing the parties to provide transportation to meetings was not sufficiently specific to include transporting the child to detention.  Because the order was ambiguous as to whether it required Mother to take the child to detention, or follow such an instruction from the probation officer, the Court of Appeals reversed the finding of contempt.

Dissent: Judge Orme would have found that the order was sufficiently clear to require Mother to comply with the probation officer’s instruction, and thus would have affirmed the Juvenile Court’s order.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_la121610.pdf