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Tag: contempt of court

My Ex Is Coming to My Home to Pick Up My Child 30-45 Minutes Early. He Is Not Following the Custody Order. What Can I Do?

I will assume that your ex-husband (the children’s father) arriving to pick up the children earlier than his court ordered scheduled time is a hardship on, or at least an inconvenience for, you and/or for the children. Otherwise, if the father is the noncustodial parent (meaning that he spends less time with the children than you do on a weekly or monthly or even annual basis), he’s probably eager to spend as much time as possible with his children whom he loves.

But if arriving 30 to 45 minutes earlier than the court orders permit him to arrive to pick up the children is clearly causing you and or the children to suffer hardship or chronic inconvenience, you could move to have him held in contempt of court and sanctioned or contempt. Contempt of court consists of willfully violating court orders. Contempt sanctions can include fines, being jailed for a short period of time, in some cases being required to complete therapy or counseling, parenting courses, and performing community service for a certain number of hours. If you succeed on a motion to hold your ex-husband in contempt, the court may also award you your attorney’s fees incurred to bring the motion to the court (but remember, you cannot win an attorneys fee award unless you have actually incurred attorney’s fees).

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

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State v. Mason – 2021 UT App 41

State v. Mason – 2021 UT App 41

THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee,

v.

VON DEL MASON JR., Appellant.

Opinion

No. 20190618-CA

Filed April 8, 2021

Fifth District Court, Cedar City Department

The Honorable Matthew L. Bell

No. 190500085

Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant

Brent M. Johnson, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Von Del Mason Jr. appeals the district court’s order finding him in contempt. We affirm.

BACKGROUND

¶2 Mason and his ex-wife, who were embroiled in contentious post-divorce proceedings, attended a hearing regarding the ex-wife’s relocation to Arizona. Before the judge ruled, he told the parties, “I don’t want any talking to each other. I’m not open for any debate. . . . I’ll give you my ruling and we can all leave, whatever your opinion is about it.” After the judge

made his ruling, which was adverse to Mason, he announced, “[W]e are adjourned.” Immediately thereafter Mason proclaimed to the judge, “You are a disingenuous, intellectual liar.” Following that statement, the court recording was turned off for approximately one minute. However, in a written order entered that same day, the judge recited that during that break “[s]everal times the court suggested that Mr. Mason should stop talking” and later “instructed Mr. Mason to stop talking, but he continued with similar accusations and disrespectful comments.” When the recording was turned back on, the following exchange took place:

Mr. Mason: That’s the truth, sir. And I have every right to tell you that.

The Court: Mr. Mason, you are in contempt.

Mr. Mason: Go figure.

The Court: I don’t appreciate—

Mr. Mason: I don’t appreciate you. You’re not— you’re dishonest.

. . . .

The Court: —you’re trying to make this personal.

Mr. Mason: No, you’ve made it personal, sir. You said this was your courtroom. This is not your courtroom, sir. You have a job. You were an antitrust lawyer.

The Court: I told you repeatedly to stop talking. You’re not listening. You are in contempt. I’m tired of it.

. . . .

Mr. Mason: You’re a disingenuous liar, sir.

The Court: You are in contempt.

Mr. Mason: Okay. Enjoy it.

¶3        Based on Mason’s behavior in its presence, the judge found Mason “guilty of contempt pursuant to Utah Code 78B-6­301(1) and (5)” for disrupting its proceedings and disobeying its order to stop talking and sentenced him to forty-eight hours in jail. The next day, however, the court “suspend[ed] the balance of the jail time” and ordered Mason released from jail. Mason now appeals his contempt conviction.

ISSUES AND STANDARDS OF REVIEW

¶4 As a threshold issue, we must determine whether Mason’s appeal is moot in light of the fact that he has already completed his sentence. If “the requested relief cannot affect the rights of the litigants, the matter is moot and we will not consider it.” Gardiner v. York, 2010 UT App 108, ¶ 30, 233 P.3d 500 (quotation simplified). And we consider the issue of mootness as a question of law. See State v. Legg, 2018 UT 12, ¶ 12, 417 P.3d 592 (explaining that mootness is reviewed “de novo”).

¶5        Mason raises several substantive challenges to the district court’s contempt order. First, he asserts that the court denied his right to counsel. Next, Mason asserts that he could not be held in contempt for statements he made after the court had adjourned and that the court exceeded its discretion in holding him in contempt because the court did not impose a clear order. Mason did not preserve these issues for our review, but he asks that we nevertheless review them for plain error and exceptional circumstances.

¶6        Normally, “[w]hen a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. Plain error and exceptional circumstances are such exceptions. However, here the State raised the issue of mootness and briefed Mason’s challenges to the court’s contempt order on their merits. And as discussed below, we agree with the State that the issues Mason raises fail on their merits. Where this is the case, we possess the discretion to reject claims on their merits, even when those claims have not been properly preserved. See State v. Kitches, 2021 UT App 24, ¶¶ 27–28. We elect to exercise that discretion here, and after first determining that Mason’s appeal is not moot, we address, and reject, Mason’s claims on their merits.

ANALYSIS

  1. Mason’s Appeal Is Not Moot

¶7        “A challenge to a conviction of criminal contempt is not moot if there is a possibility that collateral legal consequences may result from the conviction.” Gardiner v. York, 2010 UT App 108, ¶ 33, 233 P.3d 500. The State maintains that there is no possibility of collateral legal consequences, asserting that a criminal contempt conviction will not appear in Mason’s criminal record and is not the type of criminal conviction that can be used for impeachment purposes. However, even assuming, without deciding, that the State’s assertions are correct, the State does not respond to Mason’s argument that “because this criminal contempt conviction comes in the midst of a family law case where child custody is involved, a record of criminal contempt may affect future decisions on custody.” Cf. State v. C.H., 2008 UT App 404U, para. 2 (explaining that a criminal contempt conviction may have “ramifications on future investigations or adjudications by the Division of Child and Family Services” and could therefore affect a person’s right to parent their children). “The burden of persuading the court that an issue is moot lies with the party asserting mootness,” State v. Legg, 2016 UT App 168, ¶ 9, 380 P.3d 360 (quotation simplified), aff’d, 2018 UT 12, 417 P.3d 592, and we cannot say with certainty that Mason’s contempt conviction could have no possible impact on future child custody determinations or in future encounters with the legal system. Thus, we agree with Mason that this appeal is not moot.[1]

  1. Mason Was Not Entitled to the Appointment of Counsel in a Direct Contempt Summary Proceeding

¶8 Mason argues that the district court improperly denied his right to be represented by counsel during the proceeding in which it found him in contempt and imposed a sanction. Mason argues that he was entitled to the assistance of counsel in these criminal contempt proceedings and that the court’s failure to advise him of that right or to facilitate the appointment of counsel violated his constitutional rights and prevented him from adequately challenging the merits of the contempt finding. Although a defendant in most criminal proceedings—including many criminal contempt proceedings—generally has the right to counsel, see Turner v. Rogers, 564 U.S. 431, 441 (2011); United States v. Dixon, 509 U.S. 688, 696 (1993), the Supreme Court previously held, in Cooke v. United States, 267 U.S. 517 (1925), that such a right does not exist in summary criminal contempt proceedings involving conduct committed in the presence of the judge, see id. at 534 (“There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary.”).

¶9        Mason asserts that subsequent Supreme Court case law acknowledging that “[c]riminal contempt is a crime in the ordinary sense” and that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings,” International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826 (1994) (quotation simplified); see also Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”), should be interpreted as repudiating the Court’s previous position that the appointment of counsel is not required in summary criminal contempt proceedings. However, the Supreme Court has continued to reaffirm the exception for summary criminal contempt. See Turner, 564 U.S. at 441 (citing Cooke with approval and stating that “an indigent defendant [has] the right to state-appointed counsel in . . . criminal contempt proceedings (other than summary proceedings)” (quotation simplified)); Dixon, 509 U.S. at 696 (explaining that “constitutional protections for criminal defendants,” including the right to the assistance of counsel, “apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions” (emphasis added)). Although these more recent holdings may not address the issue head-on, the Court’s continued reference to the exception without repudiating Cooke leaves us with no basis, under the federal constitution, for recognizing a constitutional right to the assistance of counsel in summary criminal contempt proceedings. Because Mason had no right to counsel, the court could not have erred by not informing him of such a right or by choosing not to appoint counsel to assist him in the summary proceeding.

III. We Reject Mason’s Challenges to the Court’s Contempt Finding

¶10 The court found Mason in contempt based on both subsections (1) and (5) of Utah Code section 78B-6-301. Mason raises challenges with respect to the court’s findings under both provisions.

  1. The Court Did Not Err by Holding Mason in Contempt After Stating That Proceedings Were Adjourned

¶11      In his challenge to the contempt order, Mason asserts on appeal that the court erred in holding him in contempt under Utah Code section 78B-6-301(1), because his comments occurred after the judge had stated that proceedings were adjourned. That subsection defines contempt as “disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the course of a trial or other judicial proceeding.” Utah Code Ann. § 78B-6-301(1) (LexisNexis 2018) (emphasis added). Mason asserts that the plain language of subsection (1) limits the definition of contemptuous behavior to “behavior that occurs during a formal court proceeding, not after it has adjourned.” He maintains that because the judge had announced, “[W]e are adjourned,” before Mason’s statements, the judge was no longer “holding the court” and that Mason’s actions therefore could not have “interrupt[ed] the course of a trial or other judicial proceeding.” Id.

¶12 We disagree with Mason’s formalistic interpretation of what constitutes a judicial proceeding or “holding the court.” We acknowledge Mason’s assertion that disorderly or insolent behavior toward a judge outside of court cannot justify a finding of contempt under subsection (1) of the contempt statute. See Robinson v. City Court, 185 P.2d 256, 257–58 (Utah 1947) (overturning a contempt conviction based on behavior that occurred while the contemnor and the judge were near or in a courthouse elevator because “[t]he judge was not holding court, he had already adjourned the morning session, he was on his way out of the building, and no trial or other judicial proceedings were then in progress”). But we do not agree that the contempt statute should be so rigidly interpreted in a situation involving a litigant who engages in contemptuous behavior while in the courtroom and directly before the judge. See Commonwealth v. Williams, 2000 PA Super 165, ¶¶ 5, 21–24, 753 A.2d 856 (rejecting the defendant’s assertion that his action of “raising his middle finger and stating, ‘F—k You’” to the judge as he “was being led from the courtroom” could not have obstructed the administration of justice, explaining that his actions “belittl[ed] the entire process of the administration of justice” and that “had the Court not acted in response to the [defendant’s] actions it would have eroded the Court’s authority in the eyes of all those present”); Rhoad v. State, 641 S.E.2d 35, 37 (S.C. Ct. App. 2007) (explaining that a finding of direct contempt against a defendant who made an obscene gesture to his trial counsel on his way out of the courtroom was justified because “[r]egardless of whether [the defendant’s] hearing had concluded, [the defendant] failed to show proper decorum in the courtroom and exhibited a disrespect for the court”).

¶13 Here, although the adjournment of the hearing had been announced, the court proceedings had not actually concluded. See Williams, 2000 PA Super 165, ¶ 22 (“Court proceedings are concluded after the defendant leaves the courtroom, the trial judge goes to the next case or adjourns court and leaves the courtroom.” (emphasis added) (quotation simplified)). Mason’s conduct occurred in the courtroom while the judge was still on the bench,[2] and he made his comments, directed at the judge, immediately after the judge announced the adjournment of the hearing but before adjournment had been accomplished. Simply stating that court was adjourned was not equivalent to being out of court. Nor did the court’s interest in maintaining order evaporate simply because it had announced the adjournment of Mason’s hearing.[3] “It is essential to the proper administration of . . . justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.” Illinois v. Allen, 397 U.S. 337, 343 (1970). Because Mason’s conduct fell within subsection (1)’s definition of contempt, the court’s contempt finding was not error.

  1. Mason Cannot Demonstrate That the Court Abused Its Discretion in Finding That He Had Disobeyed a Court Order

¶14 Mason also maintains that the court abused its discretion by finding him in contempt under Utah Code section 78B-6­301(5). Under that subsection, a person can be held in contempt for “disobedience of any lawful judgment, order or process of the court.” Utah Code Ann. § 78B-6-301(5) (LexisNexis 2018). “[T]o prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). Mason asserts that the judge did not clearly order him to stop talking and therefore could not properly hold him in contempt for talking.

¶15 In his written contempt order, the judge described his earlier verbal orders to Mason by stating that he had “instructed the parties . . . that there should be no talking despite what either side thought of the court’s decision” and that after Mason began making “disrespectful comments toward the court,” the judge “suggested that Mr. Mason should stop talking” and “instructed Mr. Mason to stop talking.” Mason points out that before issuing his ruling, the judge actually ordered the parties not to talk to each other rather than ordering them not to talk at all. Thus, he maintains that the order was unclear as to what he was required to do. See id.

¶16 But even accepting Mason’s argument regarding the judge’s initial order not to talk, the record shows that after Mason began making disrespectful comments, the judge “instructed” Mason not to talk anymore. Nevertheless, Mason “continued with similar accusations and disrespectful comments even after he was taken into custody by bailiffs.” It was this behavior that the judge identified as disobedience to “the court’s order to stop.” We agree with the State that Mason’s disregard of the judge’s instruction to stop talking after he had begun could constitute contempt, and we cannot say that the court abused its discretion by finding Mason in contempt on that basis. Moreover, because a district court has discretion to deal with contemptuous actions occurring in its presence, the judge did not have to let Mason “wear himself out” before imposing a sanction. In addition, even if there had been error in the court’s contempt finding under section 78B-6-301(5), it would have been harmless in light of the additional grounds for contempt it found under section 78B-6-301(1). See supra ¶¶ 11–13.

CONCLUSION

¶17 Although we determine that this appeal is not moot, we conclude that a person accused of direct contempt, committed in the presence of the court, is not entitled to the appointment of counsel in a summary contempt proceeding. Further, the district court did not abuse its discretion in holding Mason in contempt for his insolent behavior under the facts presented here. Accordingly, we affirm the district court’s contempt order.

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

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If a parent exceeds parent-time by an hour or so, what can I do?

If a parent exceeds parent-time by an hour or so, what can I do? Our custody order provides that child visitation is 11 a.m. – 4 p.m. My ex and I agreed by e-mail to change it to 10 a.m. to 3 p.m. But now my ex picks up at 10 and returns the child at 4 p.m. instead of 3 p.m.Is there no recourse since the order says 4pm despite their agreement? 

Great question. 

If you were to take this problem to court for the judge to resolve, odds are that the hearing would unfold something like this and that the judge would do something like this:  

Argument from parents: 

  • Parent 1 “The custody order says child visitation is 11 a.m.-4 p.m. Parent 2 asked to make it 10 a.m. to 3 p.m., and I agreed, but now Parent 2 picks up at 11 a.m. and brings the kids back at 4 p.m. I want Parent 2 held in contempt of court!” 
  • Parent 2 “Parent 1 lies! It’s true that Parent 2 and I agreed to change visitation start and end times from 11 and 4 to 10 and 3, but I always bring the kids back by 3 p.m. Sometimes I may run into a traffic jam or something that causes me to run a little late, but I’m not trying to ‘steal’ an extra hour. I am outraged!” 

Judge’s decision:  

“Well, you both can’t be telling the truth, but it’s impossible for me to know which of you is lying. So, unless and until one of you has independently verifiable proof to support his/her argument, I am not going to reward one of you or punish the other on such a dearth of evidence and shaky evidence at that. Now both of you obey court orders. If there is a problem with Parent 2 going an extra hour over the court-ordered visitation period, and if Parent 1 has a problem with that, then Parent 1 may want to consider keeping a photographic or videographic log of pick up and return times to document the problem and provide the court with proof. If Parent 2 is being falsely accused, then Parent 2 may also want to consider keeping a photographic or videographic log of pick up and return times and a log of photos or videos showing that if and when Parent 2 is late it’s because of traffic jams or other things beyond Parent 2’s control.  

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

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Can the courts force you to testify against someone?

Can the courts force you to testify against someone?

In a manner of speaking, yes. You do not have the the option of being a witness if you are ordered by the court to to testify.

The way you are ordered by the court to testify is by a subpoena.

If, in response to the subpoena, you attempt to refuse to come to court and/or testify, the court can hold you in contempt of court, which means it can take certain actions to make you suffer until you agree to testify.

That means that the court can fine you for refusing to testify in compliance with the subpoena.

It also means that if you refuse to come to court the judge can not only fine you, but it can issue a bench warrant to have the police go out and find and arrest you and put you in jail until you testify.

If you lie under oath as a means of avoiding testifying truthfully, that’s perjury, and if you are caught lying under oath you can be charged with a felony, which, if you were convicted, could or would result in fines and incarceration.

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

https://www.quora.com/Excluding-plea-agreements-can-the-courts-force-you-to-testify-against-someone/answer/Eric-Johnson-311?prompt_topic_bio=1

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Wollsieffer v. Wollsieffer – 2019 UT App 99 – modifying child support

THE UTAH COURT OF APPEALS

BURRIS WOLLSIEFFER, Appellant,
v.
HEATHER WOLLSIEFFER, Appellee.

Opinion No. 20170645-CA
Filed June 6, 2019
Third District Court, Salt Lake Department
The Honorable Matthew Bates
No. 154905336

Burris Wollsieffer, Appellant Pro Se
Courtney Cooper, Ryan A. Rudd, and Bruce M. Pritchet Jr., Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and JILL M. POHLMANconcurred.CHRISTIANSEN FORSTER, Judge:

¶1        Burris Wollsieffer (Father) petitioned for modification of the parties’ settlement agreement and the Illinois judgment dissolving their marriage. Heather Wollsieffer (Mother) moved the court to hold Father in contempt for his refusal to comply with certain terms of that judgment. After a bench trial, the trial court found Father in contempt for his failure to satisfy his child support obligations and awarded Mother the attorney fees she incurred in her enforcement proceeding. The court also modified Father’s child support obligations. Father appeals. We affirm and remand to the trial court for a determination of Mother’s attorney fees reasonably incurred on appeal.

BACKGROUND

¶2        Father and Mother divorced in Illinois in 2013. They entered into a settlement agreement, and based upon that agreement, an Illinois court issued a judgment (Illinois Divorce Judgment) awarding Mother sole custody of the parties’ children, subject to Father’s parent-time. Based on his income, the court ordered Father to pay $935.85 as child support every two weeks. Moreover, the Illinois court directed Father to provide additional child support in the amount of 32% of any net bonuses and any income earned in excess of his annual income used for calculating child support (Additur Provision). The Illinois Divorce Judgment required each party to pay one-half of the daycare expenses for the children. When the decree was entered, the parties were living in different states. They anticipated daycare expenses of $2,000 per month, due in part to Mother’s work-related travel. In the settlement agreement, the parties acknowledged that Mother planned “to move to the state of California” with the children, and Father, who resided in South Dakota at the time, was “moving to Florida.”

¶3        In 2015, both parties briefly resided in Utah and Father registered the Illinois Divorce Judgment with the Utah court. In August 2015, Father petitioned for modification of the Illinois Divorce Judgment, alleging that a substantial and material change in circumstances justified altering the existing orders. Father primarily sought a reduction in his child support obligation, but he also requested that the court “make equitable orders regarding parent time and award [Father] statutory parent time” because Mother had allegedly been interfering with his parent-time. Father served Mother with the petition to modify in October 2015.

¶4        Mother moved to dismiss Father’s petition, arguing that Father had failed to establish a substantial and material change in circumstances that would support modification of his child support obligation and the parent-time provisions of the Illinois Divorce Judgment. The court agreed with Mother that the parent-time provisions of Father’s petition to modify should be dismissed but denied Mother’s motion to dismiss with respect to the modification of the child support provisions. Mother also filed an order to show cause alleging that Father had failed to stay current on child support and daycare expenses as ordered by the Illinois Divorce Judgment. The parties proceeded to trial in April 2017 on these issues.

¶5        After hearing testimony and reviewing the evidence offered at trial, the court determined that both parties’ incomes had materially increased and that the change in incomes justified a modification of the Illinois Divorce Judgment. Although the parties’ incomes had both increased, Father’s child support obligation, calculated pursuant to the Utah child support guidelines, changed only minimally. The trial court ordered that child support be paid monthly rather than every other week and eliminated the original 32% Additur Provision from the Illinois Divorce Judgment. Lastly, the court ordered the modification to apply retroactively beginning January 1, 2016. In fixing this date, the court reasoned that the children lived in Utah for only the latter part of 2015 and that they should therefore benefit from the Illinois Divorce Judgment’s Additur Provision for that year.

¶6        Among other evidence presented at trial, each party offered an exhibit detailing the payments Father had made for child support and daycare expenses since the Illinois Divorce Judgment was entered in 2013. Relying on Mother’s exhibit, the trial court determined that Father failed to pay $1,401.08 in past-due child support and $5,520 in daycare expenses. For Father’s refusal to comply with the Illinois Divorce Judgment and meet these obligations, the trial court held Father in contempt. The trial court further determined that Father received income in 2015 above the Additur Provision’s threshold, triggering his obligation to pay an additional amount of child support for that year. Pursuant to the terms of the Illinois Divorce Judgment, the trial court concluded that 32% of Father’s excess 2015 income—calculated to be approximately $10,000 over the threshold—should have been directed to the parties’ children in the form of additional child support. Because Father provided no child support under the Additur Provision for 2015, the court found Father in contempt and ordered him to pay $3,205 in unpaid additional child support. In total, the court found that Father was $10,126 in arrears.

¶7        Each party requested an award of attorney fees at the end of trial. The trial court denied Father’s request for fees for his modification action because he was not impecunious. See Davis v. Davis, 2011 UT App 311, ¶ 22, 263 P.3d 520 (“To recover costs and attorney fees in proceedings on a petition to modify a divorce decree, the requesting party must demonstrate his or her need for attorney fees, the ability of the other spouse to pay, and the reasonableness of the fees.” (quotation simplified)); see also Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2018). However, the court identified two other statutory bases supporting an award of attorney fees in this action: the contempt statute, see generally id. §§ 78B-6-311 to -317 (LexisNexis Supp. 2018), and Utah Code section 30-3-3(2), which authorizes an award of attorney fees and costs in any action to enforce an order of child support to the party that “substantially prevailed upon the claim or defense.” Concluding that Mother “prevailed on her enforcement action,” the court awarded her attorney fees, but limited that award specifically to counsel’s time spent on the portion of the litigation focused on successfully proving Father’s contempt. Supporting this conclusion, the trial court observed that Mother “filed an order to show cause in which she alleged that [Father] was delinquent in his existing support obligations” and that the court “held [Father] in contempt for failing to comply with the existing support order.” The trial court also noted that “some of [Mother’s] enforcement efforts were unsuccessful,” particularly her argument that “[Father’s] income was much higher than he was claiming.”

¶8        Considering Mother’s counsel’s affidavit and supporting documents, including a detailed explanation of work performed and billing rates, the trial court ultimately awarded Mother $12,300 in enforcement-related attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶9        Father appeals.[1] He first contends that the trial court erred when it determined that Mother substantially prevailed on her motion to enforce the Illinois Divorce Judgment and therefore erred in awarding her the attorney fees she incurred.[2] “The decision to award or deny attorney fees in domestic cases is within the [trial] court’s sound discretion, and we will disturb the decision only if the [trial] court abuses that discretion.” Gore v. Grant, 2015 UT App 113, ¶ 11, 349 P.3d 779. Moreover, we “review the trial court’s determination as to who was the prevailing party under an abuse of discretion standard,” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119, but the trial court’s “interpretation of a statute is a question of law that we review for correctness,” Stephens v. Stephens, 2018 UT App 196, ¶ 20, 437 P.3d 445 (quotation simplified). We will reverse a trial court’s award of attorney fees if it fails to provide adequate findings of fact. Anderson v. Anderson, 2018 UT App 19, ¶ 22, 414 P.3d 1069.

¶10 Father also contends that the trial court erred by miscalculating his arrearages under the Illinois Divorce Judgment for his share of the children’s expenses. Specifically, Father contends that the trial court overlooked overpayments he allegedly made between October 2013 and July 2015. We review the trial court’s factual findings for clear error. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733.

¶11 Finally, both parties seek attorney fees on appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1059 (Utah Ct. App. 1994) (quotation simplified).

ANALYSIS

I. Award of Attorney Fees

¶12 Father argues that the trial court abused its discretion when it awarded attorney fees to Mother and when it fixed the amount of that award. We conclude that the trial court sufficiently supported its decision to award attorney fees to Mother and that the court did not exceed its discretion in fixing the amount of that award.

¶13      Utah Code section 30-3-3(2) authorizes an award of costs and attorney fees “[i]n any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case” upon the court’s determination “that the party substantially prevailed upon the claim or defense.” Utah Code Ann. § 30-3-3(2) (LexisNexis Supp. 2018); see also Gore v. Grant, 2015 UT App 113, ¶ 25, 349 P.3d 779 (“When a fee request is made in an order-enforcement proceeding, . . . the guiding factor is whether the party seeking an award of fees substantially prevailed on the claim.” (quotation simplified)). Fees awarded under subsection (2) “serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶ 30, 233 P.3d 836. In other words, when one party refuses to comply with a court order, thereby compelling another party to seek its enforcement, that party risks liability for the fees and costs accrued in the enforcement proceeding. See, e.g., Tribe v. Tribe, 202 P. 213, 216 (Utah 1921) (observing that if a party “refuses to comply with the decree, he does so at his peril”).

¶14 Here, Mother filed an order to show cause alleging that Father had failed to provide child support and other expenses as required by the Illinois Divorce Judgment, which collectively amounted to more than $60,000. The trial court ultimately agreed with Mother, in part, and found Father in contempt because, despite knowing of his support obligations, he willingly disobeyed the terms of the Illinois Divorce Judgment. The court determined that Father failed to pay $1,401 in base child support, $3,205 in additional child support under the Additur Provision, and $5,520 in daycare expenses. In total, the trial court found Father to be more than $10,000 in arrears as a result of unpaid obligations under the Illinois Divorce Judgment.

¶15 Considering Mother’s request for an award of attorney fees, the trial court observed that Mother sought to enforce the provisions of the Illinois Divorce Judgment.[3] And the court concluded that Mother ultimately “prevailed on her enforcement action” based on the court’s determination that Father was “in contempt for failing to comply with the existing support order.” Included in the trial court’s findings regarding why Mother prevailed, the court refers to its earlier findings and conclusions in which it resolved both Mother’s enforcement motion and Father’s petition to modify. It observed that Mother “filed an order to show cause in which she alleged that [Father] was delinquent in his existing support obligations.” The trial court also noted that “some of [Mother’s] enforcement efforts were unsuccessful,” particularly her argument that “[Father’s] income was much higher than he was claiming.”

¶16 Mother claimed that Father refused to pay his share of child support and other expenses as required by the Illinois Divorce Judgment. As a result, Mother asserted she was left to “bear [these] costs” of supporting the parties’ children “alone.” She therefore sought the court’s assistance in enforcing the terms of the then-existing order. The trial court ultimately found Father in contempt for his refusal to meet his obligations to his children, including providing base child support, additional child support under the Additur Provision, and daycare expenses.

¶17 Father successfully argued that the amount of additional child support required under the Additur Provision—a support amount he nevertheless refused to provide—was significantly less than the amount Mother asserted in her order to show cause. Father thus argued below that he substantially prevailed, but the trial court concluded that Mother substantially prevailed because she won on her contempt claims. On appeal, Father argues that because Mother did not receive 51% or more of the amount she alleged Father failed to provide in child support, Mother did not substantially prevail on her claims. But Father cites no authority to support his contention. And without more, we are unpersuaded that Mother, who successfully proved Father’s contempt, did not substantially prevail within the meaning of section 30-3-3(2) simply because she recovered less than half of what she sought in child support payments. Accordingly, we discern no abuse of the trial court’s discretion in determining that Mother should be awarded attorney fees for her efforts to enforce the terms of the Illinois Divorce Judgment.[4]

¶18      Father also challenges the amount of the attorney fees the trial court awarded to Mother. In fixing the amount of reasonable attorney fees, a trial court should generally consider (1) the legal work that was “actually performed,” (2) the amount of work that was “reasonably necessary to adequately prosecute the matter,” (3) the attorney’s billing rate and whether it is “consistent with the rates customarily charged in the locality for similar services,” and (4) any other relevant factors, “including those listed in the Code of Professional Responsibility.” Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah 1988). Here, Mother submitted the billing invoices from her attorneys documenting the amount of fees she had incurred and counsel’s declaration attesting to the time spent, billing rates, and description of the work performed.[5]

¶19 Counsel’s billing statements to Mother included the fees charged for work performed prior to Mother’s filing of the order to show cause. And separately described and accounted for the work performed in responding to Father’s petition to modify the Illinois Divorce Judgment and on Mother’s motion to enforce the terms of the then-in-effect judgment. To limit Mother’s award of attorney fees to her “efforts to enforce the existing decree,” the trial court reduced Mother’s requested fees to only those incurred in litigating Mother’s motion to enforce the orders of the Illinois Divorce Judgment. The court also took into consideration the fact that some of Mother’s enforcement efforts were ultimately unsuccessful.

¶20 Considering the hours Mother’s counsel spent litigating her order to show cause all the way through trial,[6] the trial court determined that the time spent and the billing rates of counsel were reasonable in light of their experience. The court therefore awarded Mother $12,300 for the fees she incurred specifically litigating the enforcement action. Our review of the record and the court’s findings reveals no abuse of the trial court’s discretion in calculating reasonable attorney fees. We accordingly affirm the trial court’s award of attorney fees to Mother and affirm its calculation of the amount of that award.

II. Calculation of Daycare Expenses

¶21 Father next argues that the trial court overlooked overpayments Father allegedly made with respect to his daycare expense obligations between October 2013 and July 2015.

¶22 Due to the parties’ living in different states and work-related travel, the parties’ Illinois Divorce Judgment obligated each parent to provide $1,000 per month toward daycare expenses for their children. During trial, each party submitted an exhibit summarizing, among other things, receipts for daycare expense payments. When Father moved for admission of his own exhibit, Mother objected, arguing that the calculations in his exhibit were unclear and asserting that his calculations included irrelevant information. During cross-examination, Father stated that he had not prepared a portion of his exhibit and therefore could not testify to its accuracy. Mother subsequently submitted her own exhibit, which documented all child support and daycare expense amounts provided by Father following entry of the Illinois Divorce Judgment. Father later submitted a substitute exhibit, and Mother withdrew her objection. Relying on Mother’s exhibit, the trial court determined that Father had failed to meet his daycare-related obligations under the Illinois Divorce Judgment and was $5,520 in arrears.

¶23      On appeal, Father asks this court to consider the evidence presented at trial and reach a different finding. “When reviewing a [trial] court’s findings of fact on appeal, we do not undertake an independent assessment of the evidence presented during the course of trial and reach our own separate findings with respect to that evidence.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 75, 99 P.3d 801. Instead, we “evaluate whether the court’s findings are so lacking in support that they are against the clear weight of the evidence.” Id.

¶24      Here, the court considered the testimony of the parties as well as summaries of daycare-expense payments offered by both parties between the entry of the Illinois Divorce Judgment and December 2015. As a starting point, the trial court determined that over this period, the Illinois Divorce Judgment obligated Father to provide $1,000 per month for his share of the children’s daycare expenses. Mother testified that she had hired a nanny in 2015 but that she had dismissed that nanny midway through December of that year because she did not need surrogate care for the children. Accordingly, the trial court credited Father with $500 for that month.

¶25 The court next considered the amounts Father actually provided to cover the costs of the children’s daycare. Father asserted that he had overpaid during some months but acknowledged that he “didn’t pay anything” toward daycare expenses for the last half of August 2015 through the end of that year. After considering the evidence submitted by both parties, the trial court found that Father owed $5,520 in unpaid daycare expenses—the amount Mother asserted remained outstanding. We are not persuaded that the trial court’s finding—that Father failed to meet his support obligation for daycare expenses amounting to $5,520—is against the clear weight of the evidence presented at trial.

III. Father’s Unpreserved Issues

¶26 Finally, Father raises two issues that we conclude were not preserved for appellate review. First, he argues that the trial court erred when it purportedly failed to apply Utah Code section 78B-12-112(4) to fix the date for retroactive application of the modified divorce decree. See Utah Code Ann. § 78B-12-112(4) (LexisNexis 2012) (authorizing a court to retroactively modify a support obligation “with respect to any period during which a modification is pending” and requiring that “the effective date of the modification shall be the month following service on the parent whose support is affected”). We conclude that this issue was not preserved in the trial court.

¶27      Father advocated at trial for retroactive application of the modified divorce decree, but he did not argue for the application of section 78B-12-112(4) or contend, as he does now, that the statute required that the divorce decree be modified effective November 1, 2015. Instead, Father cited no authority for his request and argued generally that the court should make the modified decree retroactive to either the date he filed his petition for modification or the date the petition was served.

¶28 On appeal, Father argues that the applicable statute requires the court to apply a date altogether different from the date he advocated for at trial and different from the date ultimately adopted by the court. Because Father did not argue to the trial court that it was required by section 78B-12-112(4) to make the modification retroactive to November 1, 2015, he has not preserved this issue for appeal.[7] See State v. Johnson, 2006 UT App 3, ¶ 13, 129 P.3d 282 (“Utah courts require specific objections in order to bring all claimed errors to the trial court’s attention to give the court an opportunity to correct the errors if appropriate.” (quotation simplified)).

¶29 Father also argues that the trial court incorrectly interpreted the parties’ Illinois Divorce Judgment. Specifically, he asserts that the trial court improperly used Father’s 2015 gross income instead of his net income when it calculated his additional child support obligation under the Additur Provision.

¶30      In addition to obligating Father to provide a fixed amount of base support for the children, the Illinois Divorce Judgment obligated Father to provide additional support amounting to “32% of the net of all bonuses he received, and 32% of any income in excess of” his base salary. (Emphases added.) The trial court determined that, in 2015, Father “earned approximately $10,000 in excess of the [threshold amount],” thus triggering the Additur Provision. It accordingly found Father in contempt for failing to provide this additional child support and determined that he was $3,205 in arrears. Because Father did not challenge the trial court’s interpretation of the Illinois Divorce Judgment’s Additur Provision as requiring examination of his gross income as opposed to his net income, we conclude that this issue was not preserved and do not consider it further.[8]

IV. Attorney Fees on Appeal

¶31 Each party requests fees incurred on appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1059 (Utah Ct. App. 1994) (quotation simplified). Because we affirm the trial court’s award of attorney fees to Mother below and because she has substantially prevailed on appeal, Mother is entitled to the attorney fees she incurred on appeal. We therefore remand to the trial court to determine the amount of attorney fees reasonably incurred in defending this appeal.

CONCLUSION

¶32 Father has not shown that the trial court exceeded its discretion when it determined that Mother substantially prevailed on her motion to enforce the terms of the Illinois Divorce Judgment. The court also acted within its discretion when it fixed the amount of that award, and we discern no clear error in the trial court’s factual findings regarding Father’s unpaid daycare expense obligations. And Father’s other claims are either inadequately briefed or unpreserved. Accordingly, we affirm and award Mother her attorney fees reasonably incurred on appeal. We remand to the trial court for the limited purpose of determining the amount of the award.

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

[1] Father asserts a total of six issues on appeal. We address the merits of two of those issues and discuss Father’s two unpreserved issues in the body of the opinion. Father’s remaining arguments are discussed below: Father argues that the trial court should have credited him with alleged child support overpayments made “shortly before” entry of the Illinois Divorce Judgment. He also contends that the trial court erred when it dismissed his petition to modify the parent-time provisions of the Illinois Divorce Judgment. Because Father cites no supporting authority and offers no reasoned analysis on either of these issues, we conclude that he has inadequately briefed them and we do not consider them further. See Utah R. App. P. 24(a)(8) (requiring an appellant to “explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal”). As a self-represented party, Father is entitled to “every consideration that may reasonably be indulged,” Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903 (quotation simplified), though “we will ultimately hold him to the same standard of knowledge and practice as any qualified member of the bar,” Robinson v. Jones Waldo Holbrook & McDonough, PC, 2016 UT App 34, ¶ 28, 369 P.3d 119.

Father’s remaining claims of error—the trial court’s selection of a date to retroactively apply the modified divorce decree and its allegedly incorrect interpretation of the Additur Provision in the Illinois Divorce Judgment—are discussed in Part III of this opinion. But our conclusion that these issues were not preserved for appellate review obviates the need to recite the standards of review that would otherwise apply to those issues. See Cheek v. Clay Bulloch Constr. Inc., 2016 UT App 227, ¶ 14 n.3, 387 P.3d 611.

[2] Father contends that the trial court “incorrectly interpreted” Utah Code section 30-3-3(2) when it awarded attorney fees to Mother. Although seemingly framing this issue as one of statutory interpretation, Father challenges only the trial court’s factual determination that Mother prevailed on her petition to enforce the Illinois Divorce Judgment. We accordingly limit our review to this question.

[3] We note that both parties requested an award of attorney fees following trial. The trial court determined that neither party was eligible for such an award with respect to the petition to modify because “neither side is impecunious” and both “have the ability to pay their own fees.” See Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2018) (authorizing an award of attorney fees and costs in divorce decree modification proceedings in order “to enable the other party to prosecute or defend the action”); see also Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (requiring that the award of attorney fees in modification proceedings “be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees” (quotation simplified)). Neither party challenges this aspect of the trial court’s decision.

[4] The court also noted that it was authorized to award Mother her attorney fees “as a remedy for [Father’s] contempt.” (Citing Utah Code section 78B-6-311.) But on appeal, Father does not challenge this ruling. Father’s failure to do so provides this court with an alternative basis to affirm the trial court’s award of attorney fees to Mother. See Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12 (“We will not reverse a ruling of the [trial] court that rests on independent alternative grounds where the appellant challenges only one of those grounds.” (quotation simplified)).

[5] Father asserts that the trial court “did not explain [the court’s] basis and numbers used . . . with detailed evidence” when it calculated the amount of the attorney fees awarded to Mother. The court, however, explained that it “carefully review[ed] counsel’s records,” which included the detailed billing statements that Mother’s counsel attached to their declaration of attorney fees in which counsel attested to the work performed, time spent, and rates charged. And the court explained which categories of fees it disallowed and the specific number of hours it found reasonable.

[6] The trial court included one-half of the total hours counsel billed for trial.

[7] Father does not argue that any exceptions to the preservation rule apply. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.”).

[8] Father does not argue an exception to the preservation rule on this claim. See State v. Johnson, 2006 UT App 3, ¶ 13, 129 P.3d 282.

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Rosser v. Rosser – 2019 UT App 5 – contempt of court

2019 UT App 5

THE UTAH COURT OF APPEALS

HOLLY REBECCA ROSSER,
Appellee,

v.

RONALD LEE ROSSER,
Appellant.

Opinion No. 20170736-CA
Filed January 10, 2019

Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman
No. 154600013

Steven W. Beckstrom, Attorney for Appellant
Stephen D. Spencer, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Ronald Lee Rosser and Holly Rebecca Rosser divorced in 2016 pursuant to a stipulated decree of divorce that was the result of mediation. One of the points of contention in their divorce case was how the parties would divide their 2015 tax obligations. At the conclusion of the mediation, the parties apparently agreed to split the 2015 tax liability equally. A few weeks later, however, both parties executed a stipulated decree of divorce that obligated Holly[1] to “pay any tax liabilities . . . for the year 2015.” Later, after Ronald refused to pay any of the outstanding 2015 tax obligation, Holly obtained an order to show cause and asked the district court to hold Ronald in contempt of court for refusing to pay his share of the 2015 taxes. The court granted Holly’s request and found Ronald in contempt. Ronald now appeals, and we agree with Ronald that the actions he was found to have taken do not constitute statutory contempt of court. Accordingly, we vacate nearly the entirety of the district court’s contempt order, and remand this case for further proceedings.

BACKGROUND

¶2        After twenty-five years of marriage, Holly and Ronald separated in 2014, and Holly later petitioned for divorce. Over the course of their marriage, the parties acquired various assets, including several vehicles, a residence in Panguitch, Utah, two other parcels of real property, and a number of franchise restaurants that were owned by a company in which Holly and Ronald each held a 50% stake. In addition to these assets, the parties also had certain debts, including a $29,902.71 tax obligation owed to the IRS for the 2015 tax year. The parties took opposing positions regarding the division of some of these assets and liabilities.

¶3        In an attempt to resolve their differences prior to trial, the parties agreed to participate in mediation on June 16, 2016. During that mediation session, the parties were able to come to an agreement regarding all of their issues, including the 2015 tax obligation. This consensus was memorialized in a three-page written agreement (the Mediation Agreement) that was signed by all parties immediately upon completion of the mediation. With regard to the tax obligation, the Mediation Agreement states as follows: “IRS debt from 2015, 50% Ron and 50% Holly.” The parties also agreed that Ronald would be entitled to certain “rebates” that the couple’s business received.

¶4        In the weeks following the mediation, Holly paid her half of the 2015 tax obligation. For reasons unclear from the record, Ronald did not. However, Ronald did contact the parties’ accountant and identify several additional tax deductions that he thought could potentially reduce the parties’ 2015 tax liability. Acting on Ronald’s instructions, in July 2016 the accountant prepared an amended 2015 tax return for Ronald and Holly. In preparing that return, however, the accountant mistakenly assumed that the entire previous 2015 tax obligation of $29,902.71 had already been paid, when in reality only half of it (Holly’s half) had actually been paid. As a result, the amended tax return indicated that not only did Ronald and Holly not owe any taxes for 2015, they were actually due a tax refund of approximately $7,900. Holly would later testify that, operating on the assumption that Ronald had paid his half of the pre­existing 2015 tax obligation as she had done, she believed that the amended returns were accurate and that the parties were in fact owed a refund. For his part, Ronald would later testify that he also believed the amended tax returns were accurate, but premised this belief on a different assumption: that Holly had paid the entirety of the 2015 tax obligation in consideration for other income she had negotiated from him. Apparently both under the belief that the amended returns were accurate, the parties signed those returns on or about August 22, 2016.

¶5        On or about August 4, 2016—after the amended tax returns had been prepared and reviewed, but before either party actually signed them—the parties and their attorneys all signed a Stipulated Motion for Entry of Findings of Fact and Conclusions of Law and Final Decree of Divorce. With respect to the 2015 tax obligation, that stipulation stated—in contrast to the Mediation Agreement—that Holly “shall be solely entitled to receive any refund resulting from the amended returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” A few days later, on August 8, 2016, the district court signed a Final Decree of Divorce (the Decree) in accordance with the parties’ stipulated motion. Under the terms of the Decree, Holly “shall be solely entitled to receive any refund resulting from the amended [2015 tax] returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” The Decree also states that Ronald is entitled to the rebates as agreed upon at the mediation.

¶6        Holly later discovered that the amended tax returns were inaccurate, and that instead of being entitled to a $7,900 refund for tax year 2015, the parties still owed $7,174.98. Under the terms of the recently-entered Decree, Holly was obligated to make this payment, but she considered that result unfair since she had already paid her half of the 2015 tax obligation, as the parties had agreed at mediation, and Ronald had not. In part because she felt as though Ronald owed her money related to the 2015 tax obligation, she declined to pass along to Ronald certain rebate checks she received to which Ronald was entitled under the terms of the Decree.

¶7        On November 21, 2016, Holly filed a Motion for Order to Show Cause, alleging that Ronald had defrauded her and asking the court to order Ronald to pay his share of the parties’ 2015 tax obligations as well as her attorney fees in bringing the motion. A few weeks later, Ron filed his own Motion for Order to Show Cause, alleging that Holly had willfully failed to comply with the provision of the Decree that concerned the rebates. Eventually, the district court scheduled both motions for an evidentiary hearing. During that hearing, Holly testified that Ronald had misled her into believing that he had paid his share of the parties’ 2015 tax obligation assigned to him pursuant to the Mediation Agreement. Ronald, by contrast, testified that Holly was not only aware that he had not done so, but that after mediation she had agreed to pay the entirety of the tax obligation. With regard to the rebates, Holly acknowledged that she had received rebate checks to which Ronald was entitled under the Decree, but stated that she had not passed those along to Ronald because she felt that he owed her money related to the 2015 tax obligations.

¶8      At the conclusion of the hearing, the court found that Ronald deceived Holly by allowing her to believe that he had paid his share of the tax obligation, and that Holly had not in fact agreed to pay it herself. The court then found Ronald in contempt of court for “his deliberate deceit and failure to act as agreed between the parties on June 16, 2016,” and ordered Ronald to pay Holly approximately $15,000 plus reasonable attorney fees, which were later determined to be $4,000. The court also found that Holly had “failed to make” the rebate payments to Ronald as required by the Decree, but that Holly’s conduct “did not intentionally violate the Decree” because Holly was “merely reacting to [Ronald’s] deceit.” Accordingly, the court allowed Holly to “offset” the rebate amounts she owed Ronald against the amount it determined Ronald owed her on the tax issue. After quantifying the amount of attorney fees to which it believed Holly was entitled, the court eventually entered judgment against Ronald in the amount of $18,951.11, but stated, in the judgment, that Holly “may apply” the “rebates toward the judgment and thus give [Ronald] credit” for them.

¶9        Ronald appeals from that judgment, and asks us to consider whether the district court erred in holding him in contempt. When reviewing a district court’s decision to find a party in contempt, “we review the district court’s findings of fact for clear error and its legal determinations for correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (quotation simplified). Ronald’s chief complaint with the district court’s contempt determination is a legal one: Ronald contends that the facts alleged by Holly, even if true, cannot constitute statutory contempt of court as a matter of law.[2] This is a legal question that we review for correctness. Id.

¶10      Under Utah statutory law, a court has authority to hold a person in contempt of court for any one of twelve enumerated reasons. See Utah Code Ann. § 78B-6-301 (LexisNexis 2012).[3] Ronald contends that none of the twelve grounds apply here, and that therefore the district court was without statutory authority to hold him in contempt. We agree with Ronald.

¶11 In this case, while it is clear that the district court found that Ronald was in contempt of court, it is unclear which of the twelve statutory grounds the court relied upon. In its order, the court stated that Ronald was “in contempt, due to his deliberate deceit and failure to act as agreed between the parties on June 16, 2016.” The court gave no other indication of the legal (as opposed to the factual) grounds for its determination that Ronald was in contempt of court.

¶12      Holly asserts that the district court implicitly relied upon two of the twelve statutory grounds for contempt: (a) the fourth one, which allows a court to find a “party to an action” in contempt for “deceit, or abuse of the process or proceedings of the court”; and (b) the fifth one, which allows a court to find a person in contempt for “disobedience of any lawful judgment, order or process of the court.” Id. § 78B-6-301(4), (5). We are not convinced that either of these grounds was appropriately invoked in this case.

¶13 The court did mention Ronald’s “deliberate deceit” as part of its reason for holding Ronald in contempt of court. But the deceit the court described in its findings was not deceit Ronald committed upon the court; rather, it was deceit Ronald apparently committed upon Holly by not telling her that he had failed to pay his share of the parties’ 2015 tax obligation. In this case, there is no allegation, let alone a finding, that Ronald committed deceit or fraud on the court, and in our view subsection (4) of the contempt statute must be interpreted to include only deceit committed on the court.

¶14      We reach that conclusion after reviewing the provision in context. First, subsection (4)—unlike other subsections—is by its own terms limited to the actions of “part[ies] to the action or special proceeding.” See id. § 78B-6-301(4). Second, “deceit” is part of a short list of things that might be found contemptuous under that subsection, and the other thing listed is “abuse of the process or proceedings of the court.” Id. Our supreme court requires a “commonsense approach” to statutory interpretation in which “a word is given more precise content by the neighboring words with which it is associated.” See Thayer v. Washington County School Dist., 2012 UT 31, ¶ 15, 285 P.3d 1142 (quotation simplified). Here, the entire thrust of the subsection is aimed at allowing a court to penalize deceitful misuse of judicial proceedings by parties to those proceedings. Ronald’s actions were all undertaken toward Holly, and not toward the court, and thus cannot fall within the ambit of subsection (4).

¶15 It is contemptible deceit, for example, to lie to a court under oath.[4] See Bhongir v. Mantha, 2016 UT App 99, ¶ 16, 374 P.3d 33. It is also contemptible deceit to file false documents, see, e.g. PacifiCorp v. Cardon, 2016 UT App 20, ¶ 3, 366 P.3d 1226, or to falsely testify during a divorce proceeding that one has very little money and then skip town with money which one has previously deposited under an assumed name, see Smith v. Smith, 218 P.2d 270, 271–72 (Utah 1950). But these are all actions taken toward the court, and we are aware of no case—and Holly provides us with none—in which a court held a person in contempt for deceit that occurred outside of the presence of the court, was directed towards another party, and did not involve false sworn testimony or the filing of a falsified document.

¶16 We share Ronald’s concern that, were Holly’s position governing law, there would be little to prevent any untruthful statement made by any party to anyone while litigation is pending from being punishable by contempt of court. Indeed, Holly’s contentions in this case are, in essence, that Ronald breached the Mediation Agreement and in the course of doing so made fraudulent statements—or at least committed fraudulent nondisclosure—toward Holly. In our view, it would stretch the meaning of subsection (4) of the contempt statute well beyond its intended meaning if facts like these, even if true, were determined to fall within its ambit.

¶17      Holly next contends that the district court could also have been relying on subsection (5), which allows a court to punish “disobedience of any lawful judgment, order or process of the court.” Utah Code Ann. § 78B-6-301(5) (2012). But the district court did not reference any judgment or order that it believed Ronald disobeyed. Instead, the only document the court mentioned was the Mediation Agreement; the court faulted Ronald for failing “to act as agreed between the parties on June 16, 2016.” It is undisputed that, as part of the Mediation Agreement, Ronald agreed to pay half of the parties’ 2015 tax obligation, and that he did not ever actually do so. But the Mediation Agreement was not an order of the court; it was just a private agreement between two parties. Breach of a private agreement that has not yet been made an order of the court cannot be a violation of subsection (5) of the contempt statute.[5]

¶18 Holly attempts to defend the court’s contempt order by asserting that Ronald was not only in violation of the parties’ private Mediation Agreement, but that he was also in violation of the Decree, and that—even though the district court made no mention of it—the district court intended to hold Ronald in contempt for failure to comply with the terms of the Decree. For support, Holly directs our attention to paragraph 9(r) of the Decree, which is the paragraph setting forth the parties’ rights and obligations regarding the 2015 tax obligation. As noted above, that paragraph states that Holly is to receive any 2015 tax refund to which the parties may be entitled, but that Holly “shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” The plain terms of the Decree (as opposed to the Mediation Agreement) obligate Holly to pay the entirety of the parties’ 2015 tax obligation, whatever that obligation might be. While Ronald’s failure to pay half of that obligation may well violate the terms of the Mediation Agreement, such failure clearly does not violate the terms of the Decree, because the Decree imposed upon Ronald no obligation to pay any of the parties’ 2015 tax obligation.

¶19      Holly argues, however, that paragraph 9(r) of the Decree is at least ambiguous, and asks us to consider parol evidence, most notably the Mediation Agreement, in construing its terms. Holly maintains that the “ambiguity” contained in paragraph 9(r) was “the presence or absence of a tax refund,” and asserts that she only agreed to the terms of the Decree because she believed that she would receive a tax refund. Holly’s argument fails, however, because the plain language of the Decree is not itself ambiguous, and clearly obligates her—and not Ronald—to pay any outstanding tax liability. A provision is ambiguous only if “its terms are capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial ambiguities.” See Mind & Motion Utah Investments, LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (quotation simplified). If the language is not ambiguous, “the parties’ intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law.” Id. (quotation simplified). “Terms are not ambiguous simply because one party seeks to endow them with a different interpretation according to his or her own interests.” Id. (quotation simplified). Instead, “the proffered alternative interpretations must be plausible and reasonable in light of the language used.” Id. (quotation simplified).

¶20 Holly’s interpretation of the language contained in paragraph 9(r) is simply not “plausible and reasonable in light of the language used.” Id. Where the language clearly imposes upon Holly the obligation to pay whatever tax obligation the parties owed for the 2015 tax year, any interpretation that imposes that obligation, even in part, upon Ronald is simply not consonant with the plain meaning of the language used. Accordingly, Ronald’s failure to pay any portion of the parties’ 2015 tax obligation is not a violation of the plain terms of the Decree, and therefore the district court could not have properly held Ronald in contempt of court on that basis.

CONCLUSION

¶21      A statutory contempt remedy simply does not fit the facts of this case, even if we assume that Holly’s version of the facts is correct. Ronald did not commit deceit on the court, nor did he violate an order or judgment of the court. He appears to have violated the terms of the Mediation Agreement, and—although we express no opinion on the matter—he may have committed fraud or fraudulent nondisclosure upon Holly in the time period between the mediation and the entry of the Decree. But Holly’s remedy, if any, for Ronald’s actions must be found somewhere other than the contempt statute.[6] We vacate nearly the entirety[7] of the district court’s contempt order, including its order that Ronald pay attorney fees, and remand this case for further proceedings consistent with this opinion.

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

[1] Because both parties share the same surname, we identify the parties by their first names throughout this opinion. We intend no disrespect by the apparent informality.

[2] Among other additional arguments, Ronald also takes issue with certain of the district court’s factual findings supporting its contempt determination, but because we determine that the facts as set forth by Holly cannot constitute statutory contempt as a legal matter, we need not consider any of Ronald’s other arguments, including whether the district court clearly erred in any of its factual determinations.

[3] Under Utah law, courts also have inherent (non-statutory) contempt powers. See Chen v. Stewart, 2005 UT 68, ¶ 36, 123 P.3d 416 (“A court’s authority to sanction contemptuous conduct is both statutory and inherent.”). In this case, however, Holly did not ask the district court to invoke its inherent powers and, in its order, the district court did not expressly invoke any such powers. On appeal, Holly defends the district court’s order by asserting that the court had the statutory power to issue its contempt order. Because the district court does not appear to have invoked its inherent power, and because Holly does not argue that it did, we do not address whether the district court would have had the power to hold Ronald in contempt of court pursuant to its inherent (as opposed to its statutory) authority.

[4] During the course of the hearing on Holly’s order to show cause, Ronald testified that he had a meeting with Holly in July 2016 where she agreed to pay all of the 2015 taxes. Holly denied that any such meeting ever occurred, and denied ever agreeing to pay the entirety of the 2015 tax obligation. The district court credited Holly’s version of those events, and made a finding that Ronald was “not telling the truth” in setting forth his version. However, there is no indication in the remainder of the court’s contempt order that it intended to hold Ronald in contempt for the particular statement that it found was not true. The court’s specific contempt finding lists only “deceit” in “fail[ing] to act as agreed between the parties on June 16, 2016,” and makes no attempt to ground a contempt finding on any “deceit” associated with Ronald’s testimony about the July 2016 meeting.

[5] The district court ordered the parties to participate in mediation. However, Holly makes no claim that Ronald failed to participate in mediation, or that the district court intended to hold Ronald in contempt for violating its order that the parties participate in mediation. See, e.g., Rawlings v. Rawlings, 2008 UT App 478 ¶¶ 24-28, 200 P.3d 662 (holding that while complete failure to participate in court-ordered mediation may constitute a violation of a court order to participate in mediation in good faith, participating with no intention of making or considering any settlement offers does not), reversed on other grounds by Rawlings v. Rawlings, 2010 UT 50, 240 P.3d 754.

[6] For instance, a party in Holly’s situation could, among other options, (a) elect to file a petition to modify the Decree, asserting a substantial and material change in circumstances; (b) file a motion, pursuant to rule 60(b)(3) of the Utah Rules of Civil Procedure, seeking relief from the terms of the Decree on the basis of fraud; or (c) file a separate lawsuit alleging fraud, fraudulent nondisclosure, or some other appropriate cause of action, and seeking damages. We express no opinion about whether, on the facts presented here, Holly would be entitled to relief under any of these options.

[7] We do not vacate Paragraphs 20–22 of the district court’s contempt order. In those paragraphs, the district court determined that Holly had failed to comply with the provision of the Decree that required her to pass along to Ronald certain rebate checks that she might receive. Holly has not appealed those findings, and takes no issue with them in the context of Ronald’s appeal. On remand, the district court may revisit the question of whether Holly is entitled to offset her obligation to Ronald regarding the rebate checks against any other obligation Ronald may owe her, or whether a judgment in Ronald’s favor regarding the rebate checks is appropriate.

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How Do I Get My Ex Prosecuted for Custodial Inteference?

QUESTION:

What can I file in court for custodial interference? Is it just a matter of filing a motion for order to show cause? Or is there more to it?

ANSWER:

Custodial interference is a crime, so you cannot file a custodial interference action yourself (only a prosecutor can do that). The custodial interference law is found at Utah Code § 76-5-303.

To get the ball rolling on a custodial interference prosecution you need to report the custodial interference to the police or to the local county or city attorney. It almost certainly won’t do you any good, however. Why? Because the police and prosecutors hate the custodial interference law. No, really. I’m not kidding. Rarely, rarely, rarely will the police make an arrest or issue a citation for custodial interference, and rarely will the prosecutor file charges. They simply refuse to enforce the law. “Oh,” you may say, “but my case is so egregious that the police will surely help me.”

No, they won’t.

Is that legal? No. Is that right? No. But they get away with it.

Don’t believe me? Call the police and/or prosecutor; tell them your story. See if they do anything.

You can, however, file against your ex a motion for order to show cause as to why he or she should not be held in contempt of court for his noncompliance with parent-time  and/or custody orders. Utah law has specific laws that provide for sanctions for parents who fail or refuse to comply with custody and/or parent-time orders:

Utah Code § 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.

There are also these sanctions available to the court to impose for contempt of court:

Utah Code § 78B-6-310.  Contempt — Action by court.

(1) 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.

(2) A fine imposed under this section is subject to the limitations of Subsection 76-3-301(2).

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

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Can the Utah Divorce Court Force My Ex to Refinance?

Question: My ex was awarded the house in our divorce, as long as my ex refinances the house, so that I am removed from the loan encumbering the house. But it’s been months and my ex has not refinanced. My ex hasn’t even tried to refinance the loan to remove me as a liable party. Can the court order my ex to refinance now?

Answer: The court already ordered your ex to refinance, so what you’re really asking is whether the court can force your ex to refinance or perhaps speed up the refinance process. If the court determines that your ex is willfully violating the order to refinance, then the court can do some things to coerce your spouse, such as imposing a fine up $1,000, order your incarcerated in the county jail for up to 30 days, or both (these are known as sanctions for contempt of court; Utah Code Section 78B-6-310). If your ex has little or no money, a fine won’t be any motivation and, for that matter, neither may a jail sentence, but if your ex isn’t refinancing just to be lazy or malicious, sanctions for contempt of court might do the trick. If your ex cannot refinance and you worry about staying on the loan without the benefit of having possession of the house, you could file a motion or new law suit asking the court to order the house sold–that way the loan will get paid off and you won’t be liable anymore.

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

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