Gullickson v. Gullickson

2013 UT App 83, 301 P.3d 1011, 731 Utah Adv. Rep. 10, 2013 WL 1339831, 2013 Utah App. LEXIS 83
CourtCourt of Appeals of Utah
DecidedApril 4, 2013
Docket20110700-CA
StatusPublished
Cited by5 cases

This text of 2013 UT App 83 (Gullickson v. Gullickson) 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
Gullickson v. Gullickson, 2013 UT App 83, 301 P.3d 1011, 731 Utah Adv. Rep. 10, 2013 WL 1339831, 2013 Utah App. LEXIS 83 (Utah Ct. App. 2013).

Opinions

Opinion

ROTH, Judge:

T1 Jeffrey M. Gullickson (Husband) appeals from the district court's order on a petition to modify the divorce decree and a petition for temporary order filed by Catherine N. Gullickson (Wife). Specifically, Husband contends that, without an evidentiary hearing, the district court improperly modified the divorcee decree's distribution of the home in which the parties had resided during the marriage; overruled his objection to Wife's plan to move out of state with the parties' minor child, and the corresponding adjustment to his parent-time, without a showing of immediate and irreparable harm as required by Utah Rule of Civil Procedure 106; denied him an evidentiary hearing on these issues; and refused to consider his contempt claim. He also seeks his attorney fees incurred in the home modification proceedings. We vacate the court's order regarding the home and remand for a modification hearing. On remand, the court should reconsider the award of attorney fees as appropriate following the modification hearing. Otherwise, we affirm the district court.

BACKGROUND

T2 In January 2008, as part of the resolution of property issues in their divoree proceeding, the parties reached an agreement about how to deal with the house they had lived in during the marriage. The house was Husband's premarital property, but the divorce court had awarded a one-half equitable interest to Wife based on her maintenance and enhancement of the home during the marriage. In addition, according to the see-ond amended divorce decree (the divorce decree),1 Wife was permitted to live in the home until January 22, 2018, with the parties' teenaged son, who has special needs. During this time, Wife was to be responsible for making the payments on the two mortgages, which totaled approximately $2,800 per month. At the end of the five-year period, Husband was required to either buy out Wife's 50% share of the equity in the property or put the house up for sale, with the sale proceeds to be divided as specified in the divorce decree. Husband was to notify Wife of which alternative he intended to pursue [1015]*1015"Iwlithin six (6) months prior to January 22, 2018."

T3 The divorcee decree also awarded Wife primary physical eustody of the son and awarded parent-time to Husband. The parties agreed to suspend Husband's parent-time, however, after Husband and the son were involved in an altercation. By the parties' agreement, the son was to receive counseling and Husband would refrain from exercising parent-time pending a recommendation from the therapist that the son was ready to resume visitation with Husband. The son's therapy ended in September 2010, but Husband was not notified that he was entitled to resume parent-time and he did not seek to resolve the issue with the court until Wife gave notice that she intended to move from the state. At the time of the hearings before the commissioner and the district court judge in mid-2011, Husband had not had any visitation with the son since November 2009.

T4 In May 2011, Wife filed a petition to modify the divorcee decree and a motion for temporary orders, requesting that Husband's option to buy out her interest or sell the house be accelerated so that she could relocate to Virginia with the son. In the alternative, she requested that she be permitted to rent out the home in order to be able to fulfill her obligation to pay the mortgages. Wife explained that she had been unemployed since fall 2010 and had been unable to find suitable work in Utah. As a result, she had underpaid the May mortgage payments by about $1,500. Husband responded with a countermotion, seeking a temporary restraining order prohibiting Wife from leaving the state with the son, a determination that Wife was in contempt for failing to pay the mortgages as required by the decree, and, if Wife were allowed to relocate, reduction of his $4,000 monthly alimony obligation. The parties' motions were set for hearing before a domestic relations commissioner.

I. The Commissioner Proceedings

T5 At the hearing before the commissioner, the parties called no witnesses but presented their evidence by proffer only.

A. Real Property Modification

T6 Regarding the home, Wife explained that because she had been unable to find full-time work locally, she could no longer keep current on the mortgage payments. She had found employment in Virginia, however, at her brother's retail store and was planning to move,. Wife represented that she had located and sereened two potential renters willing to pay $3,300 per month in rent, more than enough to cover the two mortgage payments. Alternatively, she proposed that Husband assume responsibility for paying the mortgages until January 2013 and that he could rent out the property himself to cover the expense.

T7 Husband objected to Wife's request to rent the property, asserting that while Wife had an equitable interest, he, and not Wife, was "the owner of the property and [Wife] does not have the right to rent the property." Husband further objected to Wife's alternative proposal that the burden of paying the mortgages be shifted to him in advance of the January 2013 option date, a period of approximately nineteen months. Husband asserted that Wife's proposal would constitute a permanent modification of the divorce decree and seemed to take the position that a trial or evidentiary hearing was required to resolve the issue, not simply a proceeding before the commissioner. In addition, Husband argued that rule 106 of the Utah Rules of Civil Procedure limits temporary orders in modification proceedings to child support, custody, and parent-time, thus precluding the interim changes that Wife sought in the divorce decree's allocation of responsibility for the mortgages. See generally Utah R. Civ. P. 106(b) (explaining that the "decree sought to be modified remains in effect during the pendency of the petition [to modify]," except with respect to child support, custody, and parent-time orders, which may be modified in the interim under certain cireumstances). The commissioner disagreed that the cireum-stances created a need for modification of the divorce decree because he did not see "anything in the decree that would not allow [Wife] thfe] opportunity to rent the home." Accordingly, the commissioner offered Husband the choice of accelerating his option to sell the home or allowing Wife to rent the [1016]*1016home and continue paying the mortgages. Although the commissioner's decision amounted to a recommendation to be submitted to the district court, he ordered Husband to make an election between the two alternatives within fifteen days of the hearing, a date that occurred prior to the hearing before the district court.

B. Wife's Relocation

T8 With regard to parent-time, Husband asserted that Wife had failed to establish the "immediate and irreparable harm" required for temporary modification of the decree under rule 106 to allow her to move immediately to Virginia with their son. See id. R. 106(b)(1)(B) (authorizing a court to "order a temporary modification of ... parent-time to address an immediate and irreparable harm ..., provided that the modification serves the best interests of the child" while a petition to modify is pending).

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

Related

Kelly v. Johnson
2025 UT App 175 (Court of Appeals of Utah, 2025)
Elder v. Elder
2024 UT App 68 (Court of Appeals of Utah, 2024)
Ross v. Ross
2019 UT App 104 (Court of Appeals of Utah, 2019)
Cantrell v. Cantrell
2013 UT App 296 (Court of Appeals of Utah, 2013)
Gullickson v. Gullickson
2013 UT App 83 (Court of Appeals of Utah, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2013 UT App 83, 301 P.3d 1011, 731 Utah Adv. Rep. 10, 2013 WL 1339831, 2013 Utah App. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gullickson-v-gullickson-utahctapp-2013.