Cummings v. Cummings

1999 UT App 356, 993 P.2d 248, 384 Utah Adv. Rep. 5, 1999 Utah App. LEXIS 153
CourtCourt of Appeals of Utah
DecidedDecember 9, 1999
DocketNo. 981307-CA
StatusPublished
Cited by1 cases

This text of 1999 UT App 356 (Cummings v. Cummings) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummings v. Cummings, 1999 UT App 356, 993 P.2d 248, 384 Utah Adv. Rep. 5, 1999 Utah App. LEXIS 153 (Utah Ct. App. 1999).

Opinion

OPINION

BENCH, Judge:

¶ 1 Appellant appeals from the Amended Findings of Fact and Conclusions of Law Upon Remand that were entered by the trial court subsequent to appellant’s first appeal to this court in 1995. Appellant argues that the. trial court divided the marital estate unequally without explanation. Appellee urges, among other things, that an equal distribution was achieved and that we should dismiss this appeal in any event because appellant comes to this court with unclean hands. Appellee also seeks an award of costs and attorney fees incurred in defending against this appeal. We affirm and award appellee her costs and fees.

BACKGROUND

¶ 2 Appellant and appellee were married in 1954. Together they formed C. Kay Cummings Candy, Inc. in 1965. Appellee filed for divorce in 1992, and a decree of divorce was entered in 1995. The division of marital assets, particularly the business and its associated land and building, are at the heart of these prolonged and contentious divorce proceedings.

¶ 3 After the decree of divorce was entered in 1995, appellant appealed to this court, seeking review of “the trial court’s orders striking his answer, entering default judgment, and dividing the marital estate in response to his long-term failure to comply with court orders pertaining to discovery and other matters.” Cummings v. Cummings, No. 950504, slip op. at 1 (Utah Ct.App. Dec. 19, 1996). In our short unpublished memorandum decision, we affirmed the trial court almost entirely. See id. We remanded the case, however, for the limited purpose of allowing the trial court to make additional findings of fact on the following two narrow issues: “the treatment of the retained earnings in valuing the business, and the valuation of the business itself.” Id. As allowed by our decision, the trial court thereafter received additional testimony and evidence on the narrow issues remanded, and modified its prior finding concerning the value of the business. The trial court also determined [250]*250that retained earnings had no separate value apart from the value of the business itself. To even up the property distribution in view of its new findings, the court awarded appellant a one-quarter interest in the business building previously awarded in its entirety to appellee. This second appeal followed.

¶4 While the first appeal in this matter was pending, an $800,000 mortgage obligation on the business building became due. Under the original decree of divorce, the building was awarded to appellee, while appellant was ordered to make payments thereon. Appellant did not make the required payments, and foreclosure became imminent. The trial court ordered appellant to obtain financing to avoid foreclosure. Appellant obtained an eighteen month interest only loan, but at the end of the eighteen month period, he refused to pay the balloon payment then due, forcing the loan into default. Appellee then sought and received approval from the trial court to refinance the building herself. In order to close the loan which appellee had arranged, appellant needed to sign the loan papers. The trial court ordered him to sign the loan papers, but he refused to do so.

¶ 5 Appellant was held in contempt of court, sentenced to twenty days incarceration, and monetarily sanctioned. Due to appellant’s refusal to obey court orders concerning the property, financing was not secured and the building was sold to avoid foreclosure. Appellee thereafter obtained two judgments against appellant, totaling more than $262,000, which remain unsatisfied.

¶ 6 In an effort to collect on these judgments, appellee conducted a deposition on March 9, 1999 to determine what assets appellant had that are subject to execution. At the deposition, appellant refused to answer numerous questions and appellee was forced to file a motion to compel. The motion was granted because appellant’s proffered reasons for not answering the questions were disingenuous. Appellant was ordered to again submit himself for deposition. After sending notice of the deposition, appellee was informed by counsel for appellant that appellant had left the state, that his whereabouts were unknown, and that counsel was not in communication with appellant and thus would not accept service of the notice of deposition for his client. At oral argument before this court, counsel for appellant confirmed that appellant has indeed left the state, but indicated that he has become settled, can now be contacted, and is available to return to Utah as necessary.

ANALYSIS

I. Appellee’s Request For Dismissal

¶ 7 This court has previously determined that it is permissible to dismiss the appeals of contumacious appellants. In D’Aston v. D’Aston, 790 P.2d 590 (Utah Ct.App.1990), the appellee filed a motion to dismiss the appeal “on the grounds that [appellant] was currently in contempt of the trial court’s order and had secreted herself, refusing to submit to the process of the district court.” Id. at 591. We held that “if appellant persists in secreting herself in violation of the trial court’s orders, her appeal will be dismissed [in thirty days].” Id. at 595.1

¶ 8 In Von Hake v. Thomas, 858 P.2d 193 (Utah Ct.App.) (Von Hake I), cert. granted, 868 P.2d 95 (Utah), remanded, No. 930457 (Utah Dec. 1, 1993), we dismissed the appeal outright, giving no grace period such as the thirty days allowed in DAston. The appellee in Von Hake I had initiated supplemental proceedings in the trial court to discover the whereabouts and extent of appellant’s assets in order to collect upon an underlying fraud judgment. See Von Hake I, 858 P.2d at 193-94. During the course of the supplemental proceedings, the appellant was held in contempt of court because he “had not complied with [the court’s] order for production and had used improper and dilatory tactics to frustrate its orders and to avoid appearing in court.” Id. at 194. We rejected appellant’s contention that dismissal was inappropriate because the renewal action was different from the action in which the contempt occurred. See id. at 195. We refused to con[251]*251sider a renewal proceeding to be a separate action because “the connection between the original action and the renewal action in the instant case is simply too close to ignore.” Id. at 196. We held that “the D’Aston rule is applicable,” id., and dismissed the appeal outright (without allowing a grace period) due to appellant’s “long-standing status as a contemnor of the trial court.” Id. at 193.2

¶ 9 In Von Hake v. Thomas, 881 P.2d 895 (Utah Ct.App.1994) (Von Hake II), we reaffirmed our dismissal in Von Hake I. Specifically, we confirmed that the thirty-day grace period established in D’Aston was not mandatory:

Under D’Aston, a court has the discretion to determine what is a reasonable approach in dealing with a contumacious litigant who, even while disregarding the judiciary’s contempt process, nonetheless wishes to avail himself or herself of judicial procedures thought to be beneficial. Although the D’Aston

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hentsch Henchoz & Cie v. Gubbay
2004 UT 64 (Utah Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
1999 UT App 356, 993 P.2d 248, 384 Utah Adv. Rep. 5, 1999 Utah App. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-cummings-utahctapp-1999.