Marshall v. Marshall

915 P.2d 508, 288 Utah Adv. Rep. 5, 1996 Utah App. LEXIS 41, 1996 WL 168095
Court of Appeals of Utah·Decided April 11, 1996·No. 950172-CA·Published·Cited by 8 cases

Opinion

OPINION

DAVIS, Associate Presiding Judge:

Donald R. Marshall appeals from a final decree of divorce and related matters. We affirm in part and reverse in part.

PROCEDURAL BACKGROUND

In June of 1992, plaintiff filed for divorce. An order to show cause was obtained by plaintiff which, in pertinent part, addressed temporary alimony and child support. A hearing was held on the matter September 1, 1992. Defendant did not attend the hearing and, although aware of the hearing date, defendant’s counsel was not present because of a scheduling conflict. In defendant’s absence, the court entered an order which required that he pay $4122 per month in child support and $3500 per month in alimony. *511 Defendant objected to this order and requested a rehearing on the issues. The trial court granted defendant’s request, and another hearing was held on October 7, 1992. This second hearing resulted in a reduction of the child support to $3000 per month, 1 but the alimony remained at $3500. The support payments were retroactive to August 1992. Both parties were also ordered to refrain from disbursing, disposing of, or encumbering any assets without the consent of the other.

Shortly thereafter, on December 4, 1992, plaintiff obtained an order to show cause regarding defendant’s contempt for his failure to pay the full amount of the court-ordered support. Defendant paid plaintiff only $5500 per month, instead of the required $6500. In response, defendant filed a verified motion for relief requesting, among other things, that the alimony be reduced from $3500 to $1500, retroactive to August 1992. A hearing on those matters was held January 26, 1993. On February 1, 1993, the trial court, by memorandum decision, found there was sufficient evidence to sustain the temporary alimony award and also found defendant in contempt for his failure to pay the additional $1000 per month. Defendant subsequently filed a motion for reconsideration or, in the alternative, a motion to set aside the order, arguing the contempt order should be reversed and the amount of alimony reduced. On April 5, 1993, by memorandum decision, 2 the court partially granted defendant’s motion and vacated the finding of contempt. However, the court again upheld the alimony amount and awarded judgment to plaintiff in the amount of $6000, reflecting the amount of the support arrearages.

Because there had been allegations of abuse, the issues of child custody and visitation were certified by the district court to the juvenile court on May 19, 1993. The parties subsequently entered into a stipulation regarding custody and visitation, which was approved by the juvenile court on November 16, 1993. The custody and visitation order provided, among other things, that plaintiff and defendant were to have joint legal custody of the children. The order also provided that it shall be “incorporated into the terms of the decree of divorce, and shall be binding on the parties to the divorce action as though entered in the District Court, in accordance with Utah Code Ann. § 78-3a-17.” The case was then sent back to the district court for resolution of the other pending issues.

On March 10,1994, plaintiff filed a “Motion for Order to Show Cause,” 3 which was based upon several grounds, including defendant’s failure to comply with discovery, his failure to pay the additional $1000 per month in support, and his concealment of assets. Plaintiffs memorandum in support of her motion alleged numerous occasions on which defendant had failed to comply with discovery. Plaintiff requested “that defendant be ordered, within 30 days, to completely comply with all discovery requests,” that defendant be defaulted, and that he be found in contempt of court for his failure to pay the court-ordered support payments. Defendant responded by denying plaintiffs allegations and requesting immediate relief from the $3500 per month alimony award. 4 After a hearing, the trial court entered an order on May 27,1994, which provided in part:

6. Both parties are to provide statements of any and all assets sold, transferred, hypothecated or otherwise handled or disposed of from the time the divorce was filed up to the present time. The accounting should be done strictly within the normal accounting procedures, and all foundation and background documents must be *512 provided to show the amounts of the sale, to whom, the distribution of those funds upon receipt and where they are presently located. No further assets are to be sold or transferred from this point on.
7. Defendant is to submit statements of all accounts in which defendant has an interest. Plaintiff asserts she needs discovery of more accounts than defendant has submitted....
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9. All financial records from each party are to be submitted to the other by May 20, 1994, which should include credit card records, bank statements, canceled cheeks, etc.

The court also denied defendant’s request to lower the alimony award and granted plaintiff a judgment against defendant in the amount of $21,955 5 for defendant’s support arrearages.

In June of 1994, plaintiff began garnishing defendant’s wages in an attempt to collect the judgment. Interrogatories were sent to defendant’s employer, Prudential Securities. As a result of Prudential’s answers to the interrogatories, plaintiff discovered that although defendant had earlier disclosed that he had a certain “Command Account” with Prudential, he had failed to reveal that he also had three others. Furthermore, while defendant testified at his deposition that he did not have any stocks with Prudential, Prudential’s interrogatory answers revealed that he held “five groups of stock having a face value of $58,000.”

When plaintiff began garnishing defendant’s wages, defendant made a partial payment in July 1994, but then stopped making the monthly $5500 payment. 6 Thus, on August 19, 1994, plaintiff filed yet another motion for an order to show cause, seeking another judgment for the support arrearages and an order of contempt for defendant’s failure to comply with the support order, his failure to comply with the May 27, 1994 discovery order, and his intentional withholding of information regarding his accounts with Prudential.

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Marshall v. Marshall, 915 P.2d 508, 288 Utah Adv. Rep. 5, 1996 Utah App. LEXIS 41, 1996 WL 168095 (Utah Ct. App. 1996).

915 P.2d 508 (Marshall v. Marshall) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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