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Category: Order to Show Cause

Nelson v. Nelson – 2023 UT App 38 – Claim Preclusion and Child Support

2023 UT App 38

THE UTAH COURT OF APPEALS

STASHIA NELSON,

Appellee,

v.

ISAAC SCOTT NELSON,

Appellant.

Opinion

No. 20210345-CA

Filed April 13, 2023

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 154100713

Sara Pfrommer, Ronald D. Wilkinson, and Nathan S. Shill, Attorneys for Appellant

Jacob A. Watterson and James C. Jenkins, Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        This case raises issues regarding the claim preclusion

branch of the doctrine of res judicata in the context of divorce proceedings. Two years after Stashia and Isaac Nelson divorced, their circumstances had changed enough that Isaac[1] asked the district court to modify their divorce decree to give him shared physical custody of their children and to lower his monthly child support obligation. Isaac was behind in his support payments, and in response to his petition, Stashia asserted that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶2        The parties engaged in mediation and were able to agree on a new custody and parent-time arrangement and on a reduced monthly child support obligation for Isaac going forward. They presented their agreement to the court, and it entered a modified divorce decree that incorporated the terms of the agreement.

¶3        Stashia then initiated a separate proceeding to collect the child support that Isaac had failed to pay under the original decree. Isaac argued that all child-related financial matters, including his child support arrears, had been resolved in the proceeding to modify the divorce decree and that Stashia was therefore barred under the claim preclusion branch of the doctrine of res judicata from collecting the unpaid support. The court disagreed and ordered Isaac to pay past-due support. In response, Isaac filed a certificate of readiness for trial on an issue that he had not raised previously, namely, whether the reduction in his monthly support obligation should be backdated to when he filed his petition to modify the divorce decree. The district court ruled that there were no issues to certify for trial and entered judgment against Isaac for unpaid support in the amount of $2,835.40 plus interest. Isaac appeals.

¶4        We see no error in the conclusion that claim preclusion does not bar Stashia’s claim for unpaid child support. We also see no error in the district court’s ruling that there were no issues to certify for trial. We therefore affirm.

BACKGROUND

The Parties’ Marriage and Divorce

¶5        Isaac and Stashia married in 2007 and together had two children. Stashia later initiated divorce proceedings, during which the parties reached an agreement that was incorporated into a divorce decree in March 2016.

¶6        The divorce decree provided for the parties’ joint legal custody of the children, while giving Stashia sole physical custody and Isaac parent-time. The decree also ordered Isaac to pay $768 per month in child support, based on Stashia having sole physical custody of the children and on her lack of employment at the time.

Isaac’s Petition to Modify the Divorce Decree

¶7        In June 2018, Isaac petitioned to modify the divorce decree, based on “substantial and material changes in the circumstances of the parties.” In support of modifying the decree’s custody order, Isaac alleged that he had a more “stable residence” and “flexible work schedule” than when the parties divorced; that he was also more able to “provide additional familial support” because he had recently remarried; and that Stashia, on the other hand, had violated several of the custody and parent-time provisions in the divorce decree. Based on these allegations, Isaac requested “increased parent time” and “joint physical custody.”

¶8        In support of modifying the decree’s child support order, Isaac alleged that Stashia had become employed full time and that her increased income, along with the parties’ joint physical custody of the children, if the court awarded it, merited a reduction in his child support obligation.

¶9        In her answer to Isaac’s petition, Stashia alleged, among other things, that Isaac was “not current in his child support obligation.” She then asserted, as one of several affirmative defenses, that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶10 During discovery, the parties exchanged financial declarations outlining their incomes, assets, and expenses, but neither party produced documents or information regarding Isaac’s past child support payments or alleged arrears.

¶11      In October 2018, the parties participated in mediation and stipulated to a temporary modification of the divorce decree. The stipulation, the terms of which were incorporated into an order, contained temporary parent-time provisions and an agreement to participate in a custody evaluation. It did not mention or modify child support, and it concluded by saying: “All issues not specifically addressed herein that have been raised or could have been raised by the parties are, hereby, reserved.”

¶12      After the agreed-upon custody evaluation was completed, the parties again participated in mediation, in May 2019. Later the same day, the district court commissioner held a settlement conference at which the parties orally presented stipulated terms to be incorporated into an amended divorce decree.

¶13      As to custody, the parties’ attorneys told the commissioner that the parties had agreed to “a joint legal, joint physical custody arrangement,” and the attorneys then explained the details of that arrangement. As to child support, they said that the parties had agreed that “[c]hild support would be 600 per month effective June 1st, 2019.” The attorneys then said that the parties had agreed that “all prior orders that are not specifically modified here . . . would remain in full force and effect.”

¶14 Toward the end of the settlement conference, the commissioner asked Isaac and Stashia if they were “willing to accept those terms as a final resolution of the issues that [were] currently pending in [the] matter.” Each responded, “Yes.”

¶15 In October 2019, the court issued an amended divorce decree incorporating the terms the parties had orally agreed to during the settlement conference. The amended decree sets forth the parties’ custody arrangement; contains provisions regarding parent-time; restates the parties’ parenting plan; provides that Isaac’s “child support obligation shall be modified to $600.00 per month effective June 1, 2019”; contains provisions regarding claiming the minor children for tax purposes; and states the parties’ responsibilities regarding medical and childcare expenses. It then provides: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.”

Stashia’s Motion for an Order to Show Cause

¶16 In February 2020, Stashia filed a motion for an order to show cause,[2] alleging that Isaac owed child support arrears that had accrued between September 2016 and February 2020.

¶17 Isaac opposed Stashia’s request for unpaid child support. He noted that in response to his petition to modify the original divorce decree, Stashia “had raised the issue that [Isaac] had child support arrearage.” He pointed to the parties’ statements during the May 2019 settlement conference that they were willing to accept the terms outlined at that conference “as a final resolution of the issues that [were] currently pending in [the] matter.” (Emphasis omitted.) And he pointed to the language of the amended decree that says that the amended decree is “a consolidated order on custody, parent-time, and child related financial matters.” The district court commissioner “reviewed the pleadings on file and . . . considered the evidence and arguments presented” and disagreed with Isaac, finding that “[Stashia] did not waive [Isaac’s] child support arrears at the [May 2019] mediation between the parties or by stipulating to the Amended Decree of Divorce.”

¶18      Isaac objected to the commissioner’s recommendation. He argued that, based on “the principles of the ‘claim preclusion’ prong of the doctrine of res judicata,” the modification proceedings and amended divorce decree had “a preclusive effect” on a claim for child support arrears that accrued before entry of the amended decree. The district court overruled Isaac’s objection and entered judgment against Isaac for child support arrears “in an amount to be determined . . . based on the accountings submitted by the Parties.” After the parties submitted their accountings, the court found that Isaac’s child support arrears totaled $2,835.40.[3]

Isaac’s Certificate of Readiness for Trial

¶19      Isaac then filed, in March 2021, a certificate of readiness for trial, in which he asserted: “This case is ready for trial on the reserved issue of [whether] the June 1, 2019 child support adjustment should be backdated to the date of the filing of the Petition to Modify (June 2018).” Isaac had not previously asked the court to backdate the modified child support order to June 2018.

¶20      The district court ruled that “[t]here [were] no issues to certify for trial” and entered judgment against Isaac in the amount of $2,835.40 plus interest. Isaac now appeals.

ISSUES AND STANDARDS OF REVIEW

¶21      Isaac asks us to reverse the district court’s judgment against him for unpaid child support. He contends that Stashia’s claim for unpaid child support is barred by the claim preclusion branch of res judicata.[4] Ultimately, “[w]hether a claim is barred by res judicata is a question of law that we review for correctness.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622.

¶22      Part of our claim preclusion analysis in this case, however, requires a determination of the intended scope of ambiguous language in the stipulated amended divorce decree. Where the language of a written stipulation is ambiguous, “the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence.” Christensen v. Christensen, 2018 UT App 53, ¶ 6, 420 P.3d 106 (footnote omitted). When a court looks outside the four corners of a written stipulation to determine its intended scope, that determination presents a question of fact, “which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898, cert. denied, 398 P.3d 51 (Utah 2017).

¶23      Isaac also asks us to reverse the district court’s ruling, in response to his filing of a certificate of readiness for trial, that “[t]here [were] no issues to certify for trial.” The legal effect of a certificate of readiness for trial is a question of law, and “[w]e review questions of law for correctness, giving no deference to the ruling of the court below,” see Madsen v. Washington Mutual Bank FSB, 2008 UT 69, ¶ 19, 199 P.3d 898.

ANALYSIS

I. Stashia’s Claim for Unpaid Child Support
Is Not Barred by Res Judicata.

¶24 Isaac contends that the district court erred in allowing Stashia to bring a claim for unpaid child support. As we have noted, the substance of his argument is that Stashia’s claim for unpaid support is barred by the claim preclusion branch of res judicata. See supra note 3. This court has previously observed that, indeed, “[t]he principles of res judicata apply fully in the context of divorce proceedings.” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210 (citing Jacobsen v. Jacobsen, 703 P.2d 303, 305 (Utah 1985)), cert. denied, 4 P.3d 1289 (Utah 2000). But this observation merits explanation.

¶25 Both res judicata and the law of the case doctrine can operate to give an earlier decision on a particular claim or issue preclusive effect when the same claim or issue is raised again. See Utah State Bar v. Rasmussen (In re Discipline of Rasmussen), 2013 UT 14, ¶¶ 17–18, 299 P.3d 1050. A key difference between the two doctrines, however, is that generally “[r]es judicata applies as between multiple cases while the law of the case doctrine applies to successive proceedings within one case.” State v. Waterfield, 2014 UT App 67, ¶ 39 n.12, 322 P.3d 1194, cert. denied, 333 P.3d 365 (Utah 2014).

¶26 This distinction could suggest that in a single divorce case—over which a district court has continuing jurisdiction to enter orders modifying the original decree, see Utah Code § 30-3-5(5)—only the law of the case doctrine would ever apply. To the contrary, however, we have held that res judicata applies as between “[original] divorce actions and subsequent modification proceedings.” Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). Accordingly, in Krambule v. Krambule, 1999 UT App 357, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), we concluded that a petition to modify a divorce decree to require an ex-husband to pay support for a child conceived through artificial insemination without the ex-husband’s knowledge was “barred under the principles of res judicata” since that claim “could and should have been asserted in the original divorce action.” Id. ¶ 16. And in Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988), we upheld on res judicata grounds the denial of a petition to modify a divorce decree to give an ex-wife an interest in her ex-husband’s retirement benefits, which had not been included in the original decree. See id. at 123.

¶27 In other words, we treat an original divorce proceeding and each subsequent proceeding to modify the divorce decree as separate “cases” for res judicata purposes. At the same time, we treat a divorce proceeding leading to a decree or an amended decree and any subsequent proceeding to enforce that decree or amended decree as successive proceedings within the same case. Thus, in this second context, we apply the law of the case doctrine. See Robinson v. Robinson, 2016 UT App 32, ¶¶ 26–29, 368 P.3d 147 (holding, in a proceeding to enforce a stipulated divorce decree, that law of the case barred a husband from relitigating a factual issue decided previously), cert. denied, 379 P.3d 1185 (Utah 2016).[5]

¶28      This appeal is somewhat unusual in that the “first case” for

purposes of res judicata is the modification proceeding and the “second case” is the order to show cause proceeding to enforce the child support order from the original decree. But because the order to show cause proceeding is based on the original decree, it is a separate “case” from the modification proceeding that resulted in the amended decree. We therefore apply the principles of res judicata as we analyze the potential preclusive effect of the amended decree in the order to show cause proceeding.[6]

¶29      “The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion.” Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. “[C]laim preclusion corresponds to causes of action[;] issue preclusion corresponds to the facts and issues underlying causes of action.” Oman v. Davis School Dist., 2008 UT 70, ¶ 31, 194 P.3d 956.

¶30      “Claim preclusion . . . is premised on the principle that a controversy should be adjudicated only once.” Pioneer Home Owners Ass’n v. TaxHawk Inc., 2019 UT App 213, ¶ 41, 457 P.3d 393 (cleaned up), cert. denied, 466 P.3d 1073 (Utah 2020). It “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Hansen v. Bank of N.Y. Mellon, 2013 UT App 132, ¶ 5, 303 P.3d 1025 (cleaned up). “Whether a claim is precluded from relitigation depends on a three-part test.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194.

First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.

Id. (cleaned up).

¶31 Here, it is undisputed that Stashia and Isaac were the parties to both the proceeding on Isaac’s petition to modify the divorce decree—the “first case”—and the proceeding on Stashia’s subsequent claim for unpaid child support under the original decree—the “second case.” It is also undisputed that Isaac’s petition to modify the divorce decree resulted in a final judgment on the merits, in the form of the amended divorce decree. Thus, we focus our analysis on the second requirement of the claim preclusion test: whether Stashia presented or was required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the decree.

A. Stashia did not present a claim for unpaid child support in the modification proceedings.

¶32 The second requirement of the claim preclusion test is satisfied if the claim at issue was presented in a prior action. See Mack, 2009 UT 47, ¶ 29. Isaac argues that Stashia’s answer to his petition to modify the divorce decree presented a claim for unpaid child support. Specifically, he points to Stashia’s allegation that Isaac was “not current in his child support obligation” and to her assertion, as an affirmative defense, that Isaac’s “unclean hands in not being current in his child support obligation” should bar modification of his support obligation.[7]

¶33      However, while Stashia alleged that Isaac was in arrears in

his child support payments, neither that allegation nor the affirmative defense based on that allegation presented a “claim.” “An original claim, counterclaim, cross-claim or third-party claim must contain a short and plain: (1) statement of the claim showing that the party is entitled to relief; and (2) demand for judgment for specified relief.” Utah R. Civ. P. 8(a). Stashia’s answer to Isaac’s petition to modify the divorce decree did not allege how much Isaac owed in unpaid child support or make a demand for relief. We cannot, therefore, say that Stashia’s affirmative defense presented a claim for res judicata purposes. See Airfreight Express Ltd. v. Evergreen Air Center, Inc., 158 P.3d 232, 237 (Ariz. Ct. App. 2007) (holding that “affirmative defenses are not claims” for purposes of “[t]he doctrine of claim preclusion”); cf. Norman A. Koglin Assocs. v. Valenz Oro, Inc., 680 N.E.2d 283, 288 (Ill. 1997) (“A counterclaim differs from an . . . affirmative defense. A counterclaim is used when seeking affirmative relief, while an . . . affirmative defense seeks to defeat a plaintiff’s claim.”).

¶34      This is consistent with our analysis in Berkshires, LLC v. Sykes, 2005 UT App 536, 127 P.3d 1243. In that case, the plaintiffs were poised to purchase and develop multiple parcels of land when the defendants recorded a document purporting to grant an easement that would significantly hinder the anticipated development. Id. ¶ 4. The plaintiffs sued “for slander of title and interference with economic relations, claiming that [the defendants] had intentionally fabricated the [e]asement [d]ocument.” Id. ¶ 6. Late in the litigation, the defendants moved for partial summary judgment, asserting that as a matter of law under the undisputed evidence “Hope Lane, a road running [across the parcels at issue], was a public road.” Id. ¶ 9. The trial court denied the motion on the ground that the defendants had not presented a claim for Hope Lane to be declared a public road because their “original answer merely stated that ‘[a]s a separate and affirmative defense, [the] [d]efendants . . . allege that Hope Lane is a public road,’ without making any further affirmative claim for relief.” Id. (first alteration and omission in original).

¶35 On appeal, the defendants argued that the trial court improperly refused to treat their Hope Lane affirmative defense as a counterclaim. See id. ¶¶ 16–17. We said that among the factors a court could consider when deciding whether to treat an affirmative defense as a counterclaim was “whether the defense as argued or articulated in the pleadings sufficiently states a claim for relief and a demand for judgment as required by rule 8(a) of the Utah Rules of Civil Procedure.” Id. ¶ 18. In concluding that the trial court had not abused its discretion by refusing to treat the Hope Lane affirmative defense as a counterclaim, we explained:

At the heart of the matter here is whether Plaintiffs should have recognized that Defendants’ statement “Hope Lane is a public road” was in reality a counterclaim, though labeled an affirmative defense. Here, the statement on its face is not readily identifiable as a counterclaim; it requests no relief and does not demand judgment. . . . Defendants did not properly plead a counterclaim . . . .

Id. ¶ 19. In sum, although it was in a different context, we have previously concluded that an affirmative defense that requests no relief and does not demand judgment does not present a claim. Our reaching the same conclusion here in the res judicata context “is not much of a jurisprudential leap.” Atkinson v. Stateline Hotel Casino & Resort, 2001 UT App 63, ¶ 19 n.6, 21 P.3d 667.

B. The district court’s finding that the amended divorce decree did not preclude Stashia’s claim for unpaid child support was not clearly erroneous.

¶36      Even if a party does not present a claim in her pleadings or otherwise during litigation, she might still agree to settle that unpled claim with the intent to foreclose its future litigation. If such an agreement becomes the basis of a stipulated decree, the second requirement of claim preclusion is met, and claim preclusion may apply to the settled but unpled claim. See Keith v. Aldridge, 900 F.2d 736, 741 (4th Cir. 1990) (holding, in the context of a “consent judgment,” that “[i]f the parties intended to foreclose through agreement litigation of a claim, assertion of that claim in a later suit, whether or not formally presented in the earlier action, is precluded”); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4443 (3d ed. April 2022 update) (“[Following a consent judgment,] [i]f it is clear that the parties agreed to settle claims that were not reflected in the original pleadings, preclusion may extend to claims that were not even formally presented.”).[8]

¶37      Isaac relies on this principle. He contends that the amended

divorce decree, which was the product of a settlement agreement and stipulation, “expressly and unambiguously resolved” any claim for child support arrears that predated the amended decree. In support, he points to the provision of the amended decree that states: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.” (Emphasis added.) Isaac interprets the phrase “child related financial matters” to mean that the amended decree was an order resolving all child related financial matters, including his child support arrears. But this is not the only plausible reading of this provision.

¶38 The amended decree addresses several child-related financial matters explicitly: the modified child support award, income tax deductions related to the children, health insurance and medical expenses for the children, and childcare expenses. It never mentions child support arrears. Thus, the phrase “child related financial matters” can plausibly be read as encompassing only the child-related financial matters explicitly addressed in the amended decree. Because this provision of the amended decree supports two plausible readings, it is ambiguous. See Moon v. Moon, 1999 UT App 12, ¶ 19, 973 P.2d 431 (“Language in a written document is ambiguous if the words may be understood to support two or more plausible meanings.” (cleaned up)), cert. denied, 982 P.2d 89 (Utah 1999).

¶39 “Ordinarily, we interpret a divorce decree as we would any other written instrument, construing it in accordance with its plain meaning and according no deference to the district court’s interpretation.” Christensen v. Christensen, 2018 UT App 53, ¶ 6,

420 P.3d 106. “But where, as here, the agreement is ambiguous, the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence . . . .” Id. (footnote omitted).

¶40      The district court here considered extrinsic evidence to determine whether Stashia’s claim for unpaid child support was encompassed within the amended decree, and it made a factual finding that the claim for unpaid child support was not encompassed within the decree. Among the evidence considered were the oral representations the parties made during their May 2019 settlement conference and a declaration provided by Isaac, both of which Isaac directed the court to when he opposed Stashia’s motion for an order to show cause. The district court considered this evidence and found that Stashia did not waive her claim for unpaid child support.

¶41      When, as here, a court looks outside the four corners of a stipulated judgment to determine its intended scope, that determination is a determination of fact, which we review for clear error. See Noel v. James, 2022 UT App 33, ¶ 11, 507 P.3d 832 (“The scope of a stipulation presents a question of fact, which we review for clear error.” (cleaned up)); Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (same), cert. denied, 398 P.3d 51 (Utah 2017). And “[f]indings of fact are clearly erroneous only if no reasonable factfinder could review the evidence presented and arrive at the disputed finding.” Blackhawk Townhouses Owners Ass’n Inc. v. J.S., 2018 UT App 56, ¶ 23, 420 P.3d 128.

¶42      We see no clear error in the district court’s finding that the parties’ amended decree was not intended to be preclusive of Stashia’s claim for child support arrears. Isaac’s child support arrears were not mentioned at all during the May 2019 settlement conference. A reasonable factfinder might therefore believe it a stretch to assume that when Stashia and Isaac told the commissioner they were “willing to accept [the] terms [that had been outlined in the settlement conference] as a final resolution of the issues that [were] currently pending in [the] matter,” they would have thought that those issues included Isaac’s alleged child support arrears.

¶43 Moreover, after the parties said that the modified child support obligation would become effective June 1, 2019, they told the commissioner that “all prior orders that are not specifically modified [as outlined in the settlement conference] . . . would remain in full force and effect.” A reasonable view of this evidence is that when the parties accepted the terms of the stipulation “as a final resolution of the issues that [were] currently pending in this matter,” these were the terms that they intended to accept: that the child support order prior to June 1, 2019, as well as any outstanding obligations under it, “would remain in full force and effect.”

C. Stashia was not required to present her claim for unpaid child support in the modification proceeding.

¶44      Even if a claim was not presented or settled in an initial action, the second requirement of the claim preclusion test can be met by showing that the subsequently raised claim “could and should have been raised in the first action.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194 (cleaned up). A subsequent claim could and should have been brought in an earlier action “if [both claims] arise from the same operative facts, or in other words from the same transaction.” Id. ¶ 30. To determine if two claims arise from the same transaction, a court may consider “whether the facts [of each] are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 14, 284 P.3d 622 (cleaned up). But “no single factor is determinative.” Id. (cleaned up). “Therefore, every consideration need not be addressed or considered in every case.” Id.

¶45      Here, Isaac’s claims for modification of the divorce decree were not related in origin to Stashia’s later claim for unpaid child support. Isaac’s claims to modify the divorce decree originated from alleged changes to his work and home life since the entry of the original decree (including his recent remarriage), alleged violations by Stashia of the divorce decree’s custody and parent-time provisions, and Stashia’s recent full-time employment. In contrast, Stashia’s claim for unpaid child support originated from Isaac’s alleged failure to abide by the divorce decree’s child support order. These differing origins suggest that the parties’ respective claims do not arise from the same transaction. See In re Marriage of Potts, 542 N.E.2d 179, 181–82 (Ill. App. Ct. 1989) (observing that “[t]here [was] no significant evidentiary overlap” between a father’s claim for unpaid child support and the mother’s claim for modification of the support obligation and, thus, holding that res judicata did not bar the father’s separate action for unpaid support); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (concluding that a stipulation to amend a divorce decree to reduce the father’s child support obligation was “a totally different and distinct action” from the mother’s later “motion to compel payment of child support arrearages” and, thus, that res judicata did not bar the mother’s later action for arrearages).

¶46 Additionally, neither Isaac nor Stashia conducted discovery related to Isaac’s alleged child support arrears during the modification proceeding, which suggests that it was not their expectation that Isaac’s claims for modification of the original decree and Stashia’s claim for unpaid child support under the original decree would be treated as a single trial unit.

¶47      Moreover, Utah Code section 78B-12-210(9)(a) provides for the filing of a petition to modify a child support order based on a substantial change of circumstances, while our rules require a motion—previously a motion “for an order to show cause,” see Utah R. Civ. P. 7(q) (2020), and now “a motion to enforce order,” see Utah R. Civ. P. 7B—to recover unpaid child support. By providing different procedures for modifying a child support order and enforcing a child support order, our code and rules also implicitly recognize that these two types of actions generally do not arise from the same transaction. Cf. In re P.D.D., 256 S.W.3d 834, 842, 844 (Tex. App. 2008) (reasoning in part that because the Texas Family Code “does not require their joinder,” actions for “delinquent child support” and actions for “modification of . . . future child support obligations” are “separate and definable questions” and the one is not barred by the other under a “transactional approach” to res judicata).

¶48      The differing origins of Isaac’s and Stashia’s respective claims, the apparent expectations of the parties, and the procedural scheme set forth in our code and rules demonstrate that Isaac’s claim for modification of the original child support order and Stashia’s claim for enforcement of the original order did not arise from the same transaction. Thus, Stashia was not required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree.

¶49      Because Stashia neither presented nor settled her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree, and because she was not required to present her claim for unpaid child support during that proceeding, the doctrine of claim preclusion does not apply to bar Stashia’s claim.[9]

II. The District Court Did Not Err by Concluding that There
Were No Issues to Certify for Trial.

¶50      Isaac also argues that “[t]he district court erred when it

refused to allow [him] to counter Stashia’s Order to Show Cause with his request to retroactively apply the child support modification.” His request to retroactively apply the child support modification took the form of a certificate of readiness for trial filed nearly a year and a half after the modification proceeding to which it related had concluded. Because the modification proceeding had concluded, and because Isaac filed no rule 59 or 60(b) motion to alter or relieve him from the resulting judgment—i.e., the amended divorce decree, with its June 1, 2019 effective date for the modified support order—Isaac’s certificate of readiness for trial landed in a legal vacuum and had no legal effect.[10] With no pending proceeding to which retroactive application of the modified support order applied, the district court was correct to conclude that “[t]here [were] no issues to certify for trial.”

CONCLUSION

¶51      Stashia did not present an affirmative claim for child support arrears during the modification proceeding. The district court did not clearly err in finding that Stashia’s claim for those arrears was not encompassed within the modified divorce decree. And Stashia’s claim for those arrears did not arise out of the same transaction as the claims Isaac made in his petition to modify the decree. Accordingly, Stashia’s claim for unpaid child support is not barred by res judicata. Additionally, the district court’s ruling in response to Isaac’s certificate of readiness for trial—that there were no issues to certify for trial—was not in error.

¶52 Affirmed.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

[1] As is our practice, because the parties share the same last name, we use their first names, with no disrespect intended by the apparent informality.

[2] The “motion to enforce order” procedure outlined in rule 7B of the Utah Rules of Civil Procedure has now “replace[d] and supersede[d] the prior order to show cause procedure” in the context of “domestic relations actions, including divorce.” Utah R. Civ. P. 7B(a), (i), (j). A similar “motion to enforce order” procedure outlined in rule 7A now applies in the context of other civil proceedings. See id. R. 7A. In recommending rule 7B, the Utah Supreme Court’s Advisory Committee on the Rules of Civil Procedure left untouched rule 101(k), which addresses motion practice before district court commissioners and still recites requirements for “[a]n application to the court for an order to show cause.” Id. R. 101(k). The committee may wish to revise rule 101(k) to conform rule 101(k)’s provisions to those of rule 7B.

 

[3] Our resolution of this appeal makes determining the portion of this amount that accrued before entry of the amended divorce decree unnecessary.

[4] Isaac does not always frame his argument in terms of “claim preclusion” or “res judicata.” In one section of his principal brief, he asserts that the claim for unpaid child support was “resolved” by the amended divorce decree. In another, he argues that “the issues to which the parties have stipulated [have] become ‘settled’ and ‘not reserved for future consideration.’” And at one point he does explicitly invoke “the ‘claim preclusion’ prong of the doctrine of res judicata.” Regardless of their phrasing, each of these arguments is, in substance, an argument for application of the doctrine of res judicata. See infra ¶¶ 26-28; Mel Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 453 (Utah Ct. App.) (explaining that res judicata “bars the relitigation . . . of a claim for relief previously resolved” (emphasis added)), cert. denied, 769 P.2d 819 (Utah 1988); Res judicata, Black’s Law Dictionary (abridged 6th ed. 1991) (defining res judicata as “a thing or matter settled by judgment” (emphasis added)).

Because Isaac never uses the terms “issue preclusion” or “collateral estoppel” and never cites a case applying that branch of res judicata, and because he did not do so in the district court, we address only the claim preclusion branch of res judicata. See generally 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not raised at trial are usually deemed waived.”); State v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138 (declining to address an inadequately briefed issue).

[5] Application of res judicata in the divorce context might be seen as “distinguish[able]” from its application in other contexts in another way as well. See Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). That is because in the divorce context the preclusive effect of res judicata can be avoided based on “the equitable doctrine that allows courts to reopen [prior] determinations if the moving party can demonstrate a substantial change of circumstances.” Id. In fact, some prior determinations in divorce cases may be reopened on a showing of a material change of circumstances that is less than substantial. See, e.g.Miller v. Miller, 2020 UT App 171, ¶ 18, 480 P.3d 341 (observing that “when modifying parent-time (as opposed to custody), the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody” (cleaned up)). Though this might be seen as a distinguishing feature of res judicata in the divorce setting, it is consistent with our statement that “[t]he principles of res judicata apply fully in the context of divorce proceedings,” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), because a decision based on a changed set of material facts is not a decision on the same question as the one presented previously.

[6] We are not alone in this approach. See, e.g.In re Marriage of Potts, 542 N.E.2d 179, 180–82 (Ill. App. Ct. 1989) (applying res judicata principles to hold that, under the facts of the case, an amended divorce decree that modified a child support obligation did not bar a claim for child support arrears that accrued under the prior decree); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (same).

[7] “The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (cleaned up).

[8] “In Utah, . . . the rules of claim preclusion are ‘virtually identical’ to the federal rules . . . .” Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 9, 393 P.3d 285 (citation omitted).

[9] The district court expressed its ruling against Isaac’s claim preclusion argument by finding that Stashia “did not waive” her claim for unpaid child support. Our ruling is that Stashia neither waived nor forfeited her right to assert that claim. “Though principles of waiver and forfeiture are often used interchangeably, the two concepts are technically distinct.” Reller v. Argenziano, 2015 UT App 241, ¶ 30, 360 P.3d 768 (cleaned up). “Forfeiture is the failure to make the timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” Id. (cleaned up). Stashia did not waive her known right to bring a claim for unpaid support since, as we have concluded, she did not intentionally relinquish it through settlement or otherwise. Nor did she forfeit that right by the issue of failing to timely assert it since, as we have concluded, she was not required to present her claim during the modification proceeding. See id. ¶ 31 (holding that failure to timely amend a complaint to assert a claim for retroactive child support amounted to a forfeiture). We leave for another day the question of whether or how a claim for unpaid child support may be settled without running afoul of the statutory limitation on the waiver of child support claims. See generally Utah Code § 78B-12-109(1) (“Waiver and estoppel [of child support] shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.”); Cahoon v. Evans, 2011 UT App 148, ¶ 3, 257 P.3d 454 (holding that Utah Code section 78B-12-109 “rules out waiver and estoppel in all instances where there is a child support order already in place”).

[10] Isaac makes no attempt to address this procedural reality. Instead, he uses the certificate of readiness for trial as a vehicle to argue that he stipulated to a June 1, 2019 effective date for the modified child support order only “[i]n exchange” for Stashia giving up the right to pursue her claim for child support arrears. But the district court found that the parties did not intend such an exchange, and we have affirmed that finding. See supra ¶¶ 36–43.

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What to do when child won’t comply with the custody award?

What will happen if the court ruled in favor of a mother to have the custody of her child but the child refuses to go with her and she prefers to stay with the father?

This situation (and this question) comes up a lot. I will answer the question as it applies in my experience to the jurisdiction where I practice divorce and family law (Utah).

SHORT ANSWER: The general rule of thumb is that if the child is a teenager and has the guts and the will to defy the court’s custody orders, then that child is going to live with the parent with whom he or she wants to live because the court is essentially powerless to force the child to comply with the child custody order, i.e., the court finds it more trouble than it is worth to enforce a child custody order against a defiant teen.

LONGER ANSWER:

Technically, the child has no choice in the matter, once the court has issued its child custody ruling and resulting orders. In other words, just because somebody doesn’t want to follow court orders doesn’t mean that he or she is free to disregard them or to act as a law unto himself or herself. This proves to be true of court orders pertaining to adults. Child custody orders, and the children affected by them, however, are in reality a different matter.

In the law we have two terms that help to describe the situation: de jure and de factoDe jure means that which is which applies as a matter of law. For example, as a matter of law, your child is ordered to spend most of his/her time in the custody of mother, with the father spending time the child on alternating weekends and a few odd holidays. De facto means that which is or that which applies as a matter of fact (in reality, and not as the court may artificially require). So while as a matter of law your child is required to live with mother, if in reality (as a matter of “fact”—this is where the “facto” in “de facto” comes from) the child refuses to live with mother and stays at the father’s house, that is the de facto child custody situation.

When A) the de jure and de facto situations conflict in a child custody situation, and B) the child is old enough, strong enough, and willful enough to continue to the court’s custody orders, the court often (not always, but usually) feels that they are practicably powerless to force children to live with a parent with whom they do not wish to live.

Normally, when an adult will not comply with the court’s order, One of the tools a court can use to enforce compliance is its contempt powers. Those powers include finding and jailing the noncompliant person. But with children, that power is, for all intents and purposes, nonexistent. Children usually have no money with which to pay a fine, and Utah does not allow courts to jail minors for mere contempt of court.

Some courts try to get creative and impose sanctions on a noncompliant child by essentially ordering them “grounded”, but again, if the child chooses not to comply, there is little the court can do or feels is wise to do to the child. I’ve seen a court try to get a child to comply by ordering her barred from participating in her beloved dance classes and driver education courses (so that she can’t get her driver license unless she lives with the court ordered custodial parent) as long as the child refused to live with the court-ordered custodial parent. In that case, however, the child outlasted the court, i.e., she kept living with the noncustodial parent and stopped attending dance and driver’s ed. classes. Then the court found itself in the awkward position of preventing the child from getting exercise and driving to and from her job and other worthwhile, even necessary activities, so the court relented (both in the best interest of the child and to save face). This is a lesson that most courts learn when they try to use the coercive powers of the court against children to enforce child custody orders.

Courts don’t want to dedicate their own resources and law enforcement resources to 1) literally dragging a child out of one parent’s home and literally stuffing the child into some other home; and 2) doing so repeatedly when the child refuses to stay put. It’s a waste of law enforcement resources and the fear is the child will eventually run away (and act out in other self-destructive and dangerous ways), if not allowed to live with the parent of his/her choosing.

And courts don’t want to punish a parent for the misconduct of a child. Some courts have tried to punish noncustodial parent by holding them responsible for their children’s noncompliance with the court orders, but that doesn’t work when the noncustodial parent truly isn’t at fault. Courts realize that a noncustodial parent cannot simply, for example, 1) push the child out the door, lock it behind the child, and wish the child well in subzero degree weather; or 2) manhandle the child into the custodial parent’s car, then be charged with child abuse. And punishing the noncustodial parent often only serves to lead the child to be more determined to defy court orders.

As you can imagine, a child’s “power” to choose where he/she lives usually does not arise until the child is old enough and strong enough and willful enough to exercise some degree of autonomy over which parent with whom he/she lives. That doesn’t usually happen until children reach approximately the age of 12 or 14, although some children may start younger. Children under that age are typically unable or too afraid to exert their own preferences and wills.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-will-happen-if-the-court-ruled-in-favor-of-a-mother-to-have-the-custody-of-her-child-but-the-child-refuses-to-go-with-her-and-she-prefers-to-stay-with-the-father/answer/Eric-Johnson-311

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What is a court order and its types?

Here’s the definition from Black’s Law Dictionary (11th ed. 2019): 

ordern. (16c) 1. A command, direction, or instruction. See MANDATE (1). 2. A written direction or command delivered by a government official, esp. a court or judge. • The word generally embraces final decrees as well as interlocutory directions or commands. — Also termed court order; judicial order. See MANDAMUS. 

“An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings.” 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902). 

“While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from them, not only in the matter of enforcement and appeal but in other respects, as, for instance, the time within which proceedings to annul them must be taken. Rulings on motions are ordinarily orders rather than judgments. The class of judgments and of decrees formerly called interlocutory is included in the definition given in [modern codes] of the word ‘order.’” 1 A.C. Freeman, A Treatise of the Law of Judgments § 19, at 28 (Edward W. Tuttle ed., 5th ed. 1925). 

What kinds of orders are common in a Utah divorce action? Again, I defer to Black’s Law Dictionary: 

- enforcement order. A court’s order issued to compel a person or entity to comply with a statute, regulation, contract provision, previous court order, or other binding authority. 

- ex parte order (eks pahr-tee) (18c) An order made by the court upon the application of one party to an action without notice to the other. 

- final order. (16c) An order that is dispositive of the entire case. See final judgment under JUDGMENT (2). 

- final judgment. (18c) A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment. — Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. 

– income-withholding order (1986) A court order providing for the withholding of a person’s income by an employer, usu. to enforce a child-support order. — Abbr. IWO. — Also termed wage-withholding order; wage-assignment order; wage assignment. Cf. attachment of wages under ATTACHMENT (1). 

- interim order. (18c) 1. A temporary court decree that remains in effect for a specified time or until a specified event occurs. 2. See interlocutory order. 

- interlocutory order (in-tər-lok-yə-tor-ee) (17c) An order that relates to some intermediate matter in the case; any order other than a final order. • Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. — Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION (1); COLLATERAL-ORDER DOCTRINE. 

- maintenance order. See SUPPORT ORDER. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- minute order. (1918) 1. An order recorded in the minutes of the court rather than directly on a case docket. • Although practice varies, traditionally when a trial judge is sitting officially, with or without a court reporter, a clerk or deputy clerk keeps minutes. When the judge makes an oral order, the only record of that order may be in the minutes. It is therefore referred to as a minute order. — Also termed minute entry. 2. A court order not directly relating to a case, such as an order adopting a local rule of court. • In this sense, the court is not a single judge acting in an adjudicatory capacity, but a chief judge, or a group of two or more judges, acting for a court in an administrative or some other nonadjudicatory capacity. 

- modification order (1936) Family law. A post-divorce order that changes the terms of child support, custody, visitation, or alimony. • A modification order may be agreed to by the parties or may be ordered by the court. The party wishing to modify an existing order must show a material change in circumstances from the time when the order sought to be modified was entered. See CHANGE IN CIRCUMSTANCES. 

- pretrial order (1939) A court order setting out the claims and defenses to be tried, the stipulations of the parties, and the case’s procedural rules, as agreed to by the parties or mandated by the court at a pretrial conference.  

- emergency protective order. (1976) A temporary protective order granted on an expedited basis, usu. after an ex parte hearing (without notice to the other side), most commonly to provide injunctive relief from an abuser in a domestic-violence case; esp., a short-term restraining order that is issued at the request of a law-enforcement officer in response to a domestic-violence complaint from a victim who is in immediate danger. • A victim of domestic violence can obtain an EPO only through a law-enforcement officer. There is no notice requirement, but the abuser must be served with the order. The duration of an EPO varies from three to seven days, depending on state law. — Abbr. EPO. Cf. TEMPORARY RESTRAINING ORDER. 

- permanent protective order. (1981) A protective order of indefinite duration granted after a hearing with notice to both sides; esp., a court order that prohibits an abuser from contacting or approaching the protected person for a long period, usu. years. Despite the name, permanent orders often have expiration dates set by state law. An order may also require the abuser to perform certain acts such as attending counseling or providing financial support for the protected person. — Abbr. PPO. 

– qualified domestic-relations order (1984) A state-court order or judgment that relates to alimony, child support, or some other state domestic-relations matter and that (1) recognizes or provides for an alternate payee’s right to receive all or part of any benefits due a participant under a pension, profit-sharing, or other retirement benefit plan, (2) otherwise satisfies § 414 of the Internal Revenue Code, and (3) is exempt from the ERISA rule prohibiting the assignment of plan benefits. • Among other things, the QDRO must set out certain facts, including the name and last-known mailing address of the plan participant and alternate payee, the amount or percentage of benefits going to the alternate payee, and the number of payments to which the plan applies. The benefits provided under a QDRO are treated as income to the actual recipient. IRC (26 USCA) § 414(p)(1)(A); 29 USCA § 1056(d)(3)(D)(i). — Abbr. QDRO. 

– restraining order (1876) 1. A court order prohibiting family violence; esp., an order restricting a person from harassing, threatening, and sometimes merely contacting or approaching another specified person. • This type of order is issued most commonly in cases of domestic violence. A court may grant an ex parte restraining order in a family-violence case if it is necessary to (1) achieve the government’s interest in protecting victims of family violence from further abuse, (2) ensure prompt action where there is an immediate threat of danger, and (3) provide governmental control by ensuring that judges grant such orders only where there is an immediate danger of such abuse. — Also termed protective order; order of protection; stay-away order. See ex parte motion under MOTION (1). 2. TEMPORARY RESTRAINING ORDER. 3. A court order entered to prevent the dissipation or loss of property. 

- scheduling order. (1959) A court’s order that sets the time deadlines for different procedural actions in a case, such as amending pleadings, filing motions, and completing discovery. 

- separation order. (1882) A court order granting a married person’s request for a legal separation. See SEPARATION AGREEMENT (1). 

- show-cause order. (1925) An order directing a party to appear in court and explain why the party took (or failed to take) some action or why the court should or should not impose some sanction or grant some relief. — Abbr. SCO. — Also termed order to show cause (OSC; OTSC); rule to show cause; show-cause rule. 

- supervision order. (1938) Family law. A court’s order placing a child or young person under the supervision of a child-welfare agency or a probation officer in a case of neglect, abuse, or delinquency. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- temporary order. (1808) A court order issued during the pendency of a suit, before the final order or judgment has been entered. 

– temporary restraining order (1861) 1. A court order preserving the status quo until a litigant’s application for a preliminary or permanent injunction can be heard. • A temporary restraining order may sometimes be granted without notifying the opposing party in advance. Cf. emergency protective order under PROTECTIVE ORDER. 2. See ex parte injunction under INJUNCTION. — Abbr. TRO. — Often shortened to restraining order.  

- visitation order (1944) Family law.1. An order establishing the visiting times for a noncustodial parent with his or her child. 2. An order establishing the visiting times for a child and a person with a significant relationship to the child. • Such an order may allow for visitation between (1) a grandparent and a grandchild, (2) a child and another relative, (3) a child and a stepparent, or (4) occasionally, a child and the child’s psychological parent. — Also termed access order. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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Can a Child Be Held in Contempt of Court for Non-compliance with Child Custody and Parent-time Orders?

A minor child of divorced parents need not be a party to the divorce action to be subject to the court’s contempt power. See Crank v. Utah Judicial Council, 20 P.3d 307, 314-315 (Supreme Court of Utah 2001) (accord Iota, LLC v. Davco Management Co., LC, 284 P.3d 681, fn. 9 (Court of Appeals of Utah 2012)): 

¶ 25 Clearly, a trial court has the power to hold non-parties in contempt if those parties conspire to frustrate a lawful order of the court. See id.[1] Specifically, a person may be held in contempt for “[d]isobedience of any lawful judgment, order or process of the court,” id.[2] § 78–32–1(5)[3], or “[a]ny other unlawful interference with the process or proceedings of a court,” id. § 78–32–1(9). However, a court’s power to hold any person in contempt, whether a party to a case before that court or a non-party, is subject to constitutional and statutory restraints regarding the process due to any person so accused. See Von Hake v. Thomas, 759 P.2d 1162, 1169–70 (Utah 1988).

¶ 26 The basic constitutional requirement for due process is that “the person charged be advised of the nature of the action against him [or her], have assistance of counsel, if requested, have the right to confront witnesses, and have the right to offer testimony on his [or her] behalf.” Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982). The Utah Code seeks to implement this mandate by “set[ting] out two distinct procedures to be followed in contempt adjudications, one when the contempt is direct, i.e., committed in the presence of the judge, and the other when the contempt is indirect, i.e., committed outside the presence of the judge.” Thomas, 759 P.2d at 1169.

¶ 27 . . . “Indirect contempt . . . can properly be adjudged only in a proceeding more tightly hedged about with procedural protections.” Thomas, 759 P.2d at 1170. In such cases, the Utah Code amplifies upon the basic due process requirements of notice and opportunity to defend. See id. Section 78–32–3[4], in pertinent part, provides as follows:

When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officers.

¶ 28 Thus, in Utah, the statutory requirement of an affidavit is a procedural prerequisite to the imposition of any sanctions for indirect contempt. See Thomas, 759 P.2d at 1171; see also Khan v. Khan, 921 P.2d 466, 468 (Utah Ct.App.1996); Boggs v. Boggs, 824 P.2d 478, 481–82 (Utah Ct.App.1991).

Clearly a non-party to a Utah State district court action can be subject to contempt proceedings and sanctions where the acts or omissions of a non-party or parties frustrate(s) a lawful order of the court. There is no “non-party” basis for the court’s refusal to issue an order to show cause for failure to comply with a court’s child custody and parent-time orders. Even if, arguendo, the minor child is not a party to a parents’ divorce proceedings, the child is nevertheless clearly subject to the jurisdiction of this court for contempt.[5]

A court’s child custody and parent-time orders are clearly directed to both to the parents and to the minor children, and simply by virtue of either 1) a child following the custody and/or parent-time schedule; or 2) a parent making attempts to communicate with and engage with a child in the exercise of the custody and parent-time schedule, a child is not on notice of, and possesses knowledge as to the nature and contents of, the court’s child custody and parent-time order,

Crank v. Utah Judicial Council clearly establishes that the power of a court to hold a person in contempt is not limited by the formal designation of the parties. As shown in footnote 5 herein, common law principles further bolster the fact that the trial court has the power to hold in contempt a minor child subject to a divorce court’s child custody and parent-time orders.

I am not aware of any authority for the propositions A) that a minor child can be (for lack of a more exacting term) “exempted” from contempt of court proceedings or B) that a court has the discretion to deny an order to show cause movant relief in the form of an issuance of an order to show cause when the motion for order to show cause is duly made in compliance with Utah law.

Parents are, as are all Utah residents, entitled to the equal protection of the law and to enforcement of the court’s orders. Refusal to issue an order to show cause to a child who refuse to comply with a court’s child custody and parent-time orders could and almost certainly would result in denying the parent of due process of law (Utah Constitution, Article 1, Section 7), denial of his right to the redress of injuries (Id., Section 11), denial of the uniform operation of laws (Id., Section 24), and denial of fundamental rights (Id., Section 27).

Given that Utah law clearly and inarguably shows that a child is subject to the court’s contempt power in regard to noncompliance with child custody and parent-time orders:

  1. an order to show cause to a child for noncompliance with the court’s custody and parent-time orders (to show the child, the parents, and the public at large that law shall be obeyed); and
  2. use of an order to show cause to enforce the court’s order (and thus uphold the principle that a court has the actual power to enforce its own orders) through the civil courts process (as opposed to a party taking the law into his/her own hands and/or flouting the rule of law),

is entirely suitable and proper.

————————————-

[1] Citation was to Utah Code § 78-32-3, which was renumbered as Utah Code § 78B-6-302:

(1) When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily. An order shall be made, reciting the facts occurring in the immediate view and presence of the court. The order shall state that the person proceeded against is guilty of a contempt and shall be punished as prescribed in Section 78B-6-310.

(2) When the contempt is not committed in the immediate view and presence of the court or judge, an affidavit or statement of the facts by a judicial officer shall be presented to the court or judge of the facts constituting the contempt.

[2] Citation was to Utah Code § 78-32-3, which was renumbered as Utah Code § 78B-6-302. See fn. 1 supra.

[3] Utah Code § 78-32-1 was renumbered as Utah Code § 78B-6-301:

78B-6-301. Acts and omissions constituting contempt.

The following acts or omissions in respect to a court or its proceedings are contempts of the authority of the court:

*****

(5) disobedience of any lawful judgment, order or process of the court[.]

[4] Utah Code § 78-32-3 was renumbered as Utah Code § 78B-6-302. See fn. 1 supra.

[5] Note: The following arguments are adapted from a decision from the Appellate Court of Illinois, In re Marriage of Marshall, 663 N.E.2d 1113 (1996), a divorce action in which children were held in contempt of court for violating the trial court’s visitation orders:

If a child is subject to the control of each of her joint legal and physical custodial parents, she is bound by the court’s child custody and parent-time orders. Furthermore, the district court also possesses jurisdiction over the child under Utah Code §§ 30-3-5(3) and 78B-13-202. Given that jurisdiction over a person is the court’s power to bind a particular person to its orders, and given that the court clearly has the power to bind the child to its child custody and parent-time orders (and in fact has done just that with its child custody and parent-time orders) the district court has jurisdiction over the child; thus the child could very well be deemed one of the parties to the divorce action.

Rule 65A(d) of the Utah Rules of Civil Procedure provides, in pertinent part, that every order “granting an injunction shall” . . . “be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice, in person or through counsel, or otherwise, of the order.”

Rule 65A’s provisions cited above are derived from the common law doctrine that a decree of injunction not only binds parties defendant but also those identified with them in interest, in “privity” with them, represented by them or subject to their control. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Regal Knitwear Co. v. National Lab. Rel. Bd., 324 U.S. 9, 65 S.Ct. 487, 89 L.Ed. 661 (1945).

See also Petersen v. Fee Intern., Ltd., 435 F.Supp. 938, 941-942 (United States District Court, W. D. Oklahoma, 1975):

“The essence of the doctrine is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors although they were not parties to the original action. Regal Knitwear Co. v. National Lab. Rel. Bd., supra. In the older cases a decree of injunction was generally directed to the party defendant, his officers, agents, servants and employees. The object of this generalization was to prevent defendants from doing by others that which the Court had forbidden them to do personally; from accomplishing indirectly a result prohibited by the Court. The full effect of such an order was that the defendant shall not do the prohibited act himself, neither shall his agent, servant, or employees do it for him, nor shall the defendant do it as the agent, servant, or employee of another. Dadirrian v. Gullian, 79 F. 784 (D.N.J.1897).

Thus under this concept a child is also bound by the court’s child custody and parent-time orders. Joint custodial parents are parties bound by the terms of the court’s child custody and parent-time orders. The joint legal and physical custodial parent or parents exercise(s) control over the minor child, and the child is subject to the control of her parent(s), the child is thus bound by the court’s child custody and parent-time orders.

What is OSC?

QUESTION:

I hear about holding an ex who is not complying with the provisions of the Decree of Divorce or other court orders held accountable with an “OSC” What is an “OSC”?

ANSWER: “OSC” means order to show cause.

When a party is not complying with the provisions of a court order, the other party can move to have the non-compliant party sanctioned through a “motion for order to show cause” as to why he/she should not be found to be in contempt and sanctioned accordingly.

Briefly, if your ex violates a provision of the decree or other court order, you can file a motion asking the court to order your ex to come to court and explain (if your ex can) why your ex should not be punished by the court for non-compliance (or “encouraged to comply”) with the court’s orders. If your ex doesn’t have a valid excuse, the court will sanction your ex and/or compensate you for your trouble.

There are some specific contempt of course provisions that apply only to divorce and other domestic relations cases:

78B-6-315.  Noncompliance with child support order.

(1) When a court of competent jurisdiction, or the Office of Recovery Services pursuant to an action under Title 63G, Chapter 4, Administrative Procedures Act, makes an order requiring a parent to furnish support or necessary food, clothing, shelter, medical care, or other remedial care for his child, and the parent fails to do so, proof of noncompliance shall be prima facie evidence of contempt of court.

(2) Proof of noncompliance may be demonstrated by showing that:

(a) the order was made, and filed with the district court; and

(b) the parent knew of the order because:

(i) the order was mailed to the parent at his last-known address as shown on the court records;

(ii) the parent was present in court at the time the order was pronounced;

(iii) the parent entered into a written stipulation and the parent or counsel for the parent was sent a copy of the order;

(iv) counsel was present in court and entered into a stipulation which was accepted and the order based upon the stipulation was then sent to counsel for the parent; or

(v) the parent was properly served and failed to answer.

(3) Upon establishment of a prima facie case of contempt under Subsection (2), the obligor under the child support order has the burden of proving inability to comply with the child support order.

(4) A court may, in addition to other available sanctions, withhold, suspend, or restrict the use of driver’s licenses, professional and occupational licenses, and recreational licenses and impose conditions for reinstatement upon a finding that:

(a) an obligor has:

(i) made no payment for 60 days on a current obligation of support as set forth in an administrative or court order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the support obligation in accordance with the order; or

(ii) made no payment for 60 days on an arrearage obligation of support as set forth in a payment schedule, written agreement with the Office of Recovery Services, or an administrative or judicial order and, thereafter, has failed to make a good faith effort under the circumstances to make payment on the arrearage obligation in accordance with the payment schedule, agreement, or order; and

(iii) not obtained a judicial order staying enforcement of the support or arrearage obligation for which the obligor would be otherwise delinquent;

(b) a custodial parent has:

(i) violated a parent-time order by denying contact for 60 days between a noncustodial parent and a child and, thereafter, has failed to make a good faith effort under the circumstances to comply with a parent-time order; and

(ii) not obtained a judicial order staying enforcement of the parent-time order; or

(c) an obligor or obligee, after receiving appropriate notice, has failed to comply with a subpoena or order relating to a paternity or child support proceeding.

 

78B-6-316.  Compensatory service for violation of parent-time order or failure to pay child support.

(1)        If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.

(2) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.

(3) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.

(4) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.

(5) If a court finds by a preponderance of the evidence that an obligor, as defined in Section 78B-12-102, has refused to pay child support as ordered by a court in accordance with Title 78B, Chapter 12, Utah Child Support Act, the court shall order the obligor to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.

(6) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.

(7) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.

(8) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.

(9) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.

___________________

Now let’s learn about what contempt is and how it is punished (the courts don’t like to use the word “punish,” instead they like the word “sanction,” which is, of course, a synonym for “punish,” but the courts prefer to think of sanctions only as “ways to encourage compliance,” not punishment for non-compliance, but I digress):

78B-6-301.  Acts and omissions constituting contempt.

The following acts or omissions in respect to a court or its proceedings are contempts of the authority of the court:

(1) disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the course of a trial or other judicial proceeding;

(2) breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding;

(3) misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, or other person appointed or elected to perform a judicial or ministerial service;

(4) deceit, or abuse of the process or proceedings of the court, by a party to an action or special proceeding;

(5) disobedience of any lawful judgment, order or process of the court;

(6) acting as an officer, attorney or counselor, of a court without authority;

(7) rescuing any person or property that is in the custody of an officer by virtue of an order or process of the court;

(8) unlawfully detaining a witness or party to an action while going to, remaining at, or returning from, the court where the action is on the calendar for trial;

(9) any other unlawful interference with the process or proceedings of a court;

(10) disobedience of a subpoena duly served, or refusing to be sworn or to answer as a witness;

(11) when summoned as a juror in a court, neglecting to attend or serve, or improperly conversing with a party to an action to be tried at the court, or with any other person, concerning the merits of an action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the communication to the court; and

(12) disobedience by an inferior tribunal, magistrate or officer of the lawful judgment, order or process of a superior court, or proceeding in an action or special proceeding contrary to law, after the action or special proceeding is removed from the jurisdiction of the inferior tribunal, magistrate or officer. Disobedience of the lawful orders or process of a judicial officer is also a contempt of the authority of the officer.

78B-6-302.  Contempt in immediate presence of court — Summary action — Outside presence of court — procedure.

(1) When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily. An order shall be made, reciting the facts occurring in the immediate view and presence of the court. The order shall state that the person proceeded against is guilty of a contempt and shall be punished as prescribed in Section 78B-6-310.

(2) When the contempt is not committed in the immediate view and presence of the court or judge, an affidavit or statement of the facts by a judicial officer shall be presented to the court or judge of the facts constituting the contempt.

78B-6-303.  Warrant of attachment or commitment order to show cause.

If the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer. If there is no previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted. A warrant of commitment may not be issued without a previous attachment to answer, or a notice or order to show cause.

78B-6-310.  Contempt — Action by court.

The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.

78B-6-311.  Damages to party aggrieved.

(1) If an actual loss or injury to a party in an action or special proceeding is caused by the contempt, the court, in lieu of or in addition to the fine or imprisonment imposed for the contempt, may order the person proceeded against to pay the party aggrieved a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses. The court may order that any bail posted by the person proceeded against be used to satisfy all or part of the money ordered to be paid to the aggrieved party. The order and the acceptance of money under it is a bar to an action by the aggrieved party for the loss and injury.

(2) A judgment creditor may request that the court pay bail posted by a judgment debtor to the judgment creditor if:

(a) the judgment debtor owes the judgment creditor funds pursuant to a court-ordered judgment;

(b) the judgment creditor provides the court with a copy of the valid judgment; and

(c) bail was posted in cash, or by credit or debit card.

(3)        Upon receipt of a request by a judgment creditor, the court shall require the judgment debtor to provide either proof of payment or good cause why the court should not order the forfeiture of bail to then be paid to the judgment creditor. The court shall find that good cause exists if the judgment debtor provides admissible evidence that the bail was paid by a third party.

(4)        The court may, in its discretion, order all or a portion of the funds deposited with the court as bail to be paid to the judgment creditor towards the amount of the judgment. If the amount paid to the court exceeds the amount of the judgment, the court shall refund the excess to the judgment debtor.

(5)        Within seven days of the receipt of funds, the judgment creditor shall provide to the judgment debtor an accounting of amounts received and the balance still due, if any.

78B-6-312.  Imprisonment to compel performance.

When the contempt consists of the omission to perform an act enjoined by law, which is yet in the power of the person to perform, the person may be imprisoned until the act is performed, or until released by the court. The act shall be specified in the warrant of commitment.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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