Summer v. Summer

2012 UT App 159, 280 P.3d 451, 709 Utah Adv. Rep. 40, 2012 WL 1957880, 2012 Utah App. LEXIS 166
CourtCourt of Appeals of Utah
DecidedJune 1, 2012
Docket20101004-CA
StatusPublished
Cited by6 cases

This text of 2012 UT App 159 (Summer v. Summer) 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
Summer v. Summer, 2012 UT App 159, 280 P.3d 451, 709 Utah Adv. Rep. 40, 2012 WL 1957880, 2012 Utah App. LEXIS 166 (Utah Ct. App. 2012).

Opinion

MEMORANDUM DECISION

McHUGH, Presiding Judge:

{1 Ellery Bruce Summer (Husband) appeals from the trial court's rulings holding him in contempt, refusing to hold Mary Paige Summer (Wife) in contempt, and awarding alimony and attorney fees to Wife. We affirm in part and remand in part for further findings.

€ 2 Husband filed a petition for divoree on May 7, 2008. After briefing and argument, the domestic relations commissioner (the Commissioner) granted Wife's motion for temporary relief. The Commissioner's October 16, 2008 order mandated that Husband pay a number of the couple's financial obligations, including the first and second mortgages on the marital home, and premiums for "all insurance policies] existing at the time of the parties' separation." After the parties separated, Husband had stopped making premium payments for Wife's health insurance. Thus, the Commissioner's October 16, 2008 order required that Husband resume making those payments.

T3 Thereafter, Husband paid most of the bills except the premium necessary to maintain Wife's health insurance, leaving her uninsured. 1 On November 3, 2008, the Commissioner held an order to show cause hearing to determine whether Wife's allegations that Husband had failed to pay the premium were accurate. Because Husband admitted that he had not complied with the order, the Commissioner certified the issue of contempt and attorney fees to the trial court for an evidentiary hearing. Before doing so, however, the Commissioner instructed Husband to make his best efforts to reinstate the insurance policy if it was a cost-effective option. Although the open enrollment period had closed, the Commissioner and Wife indicated that the policy could be reinstated by court order. Husband raised no objections to the Commissioner's order.

T4 On February 10, 2009, the trial court held an evidentiary hearing regarding the issues certified to it by the Commissioner. At the hearing, Husband testified that he was doing everything he could to pay marital expenses but simply did not have enough money to pay Wife's health insurance premium. Husband admitted, however, that during the same period he failed to pay Wife's insurance premium, he made payments on his truck, his credit cards, the first and see-ond mortgage on the marital home, and gave money to his children from a prior marriage. He also indicated that he was living with his children and did not pay rent. The trial court concluded that Husband was in contempt of court for failing to pay Wife's health insurance premium. As a result, the court sentenced him to pay a $1,000 fine and serve thirty days in jail, but suspended the jail sentence. The parties then reached a temporary agreement that Husband would "add [Wife] back on to the ... medical insurance program," and Wife would agree to take on some additional financial obligations.

T5 Subsequently, Wife informed the trial court that she remained uninsured, and the trial court held a second order to show cause hearing on June 8, 2009. The record on appeal contains only a minute entry from this hearing, which indicates that Husband claimed he was unable to make the premium payments because Wife had withdrawn funds from a joint account Husband typically used *455 to pay the premiums. The minute entry also reflects that Husband reported that he had attempted to reinstate the medical insurance but was unable to do so. The trial court again held Husband in contempt for failing to reinstate Wife's medical insurance. As a part of this ruling, the court ordered Husband to serve the original thirty days in jail and an additional thirty days, for a total of sixty days. It appears that Husband only served one day of this sentence.

1 6 Eventually, the parties reached a stipulated agreement and requested an opportunity to place it in the record. At a hearing on September 24, 2009, the parties informed the trial court that as a part of their settlement agreement, they would each "immediately" file for Chapter 7 bankruptey protection to "discharge all of their debts." The trial court memorialized the parties' stipulation in an order, prepared by Husband's counsel, stating, in relevant part,

[T]he parties are to look into filing a bank-ruptey as soon as feasibly possible. Each party is to pay either one-half of the filing fee and attorney[ ] fees for the bankruptcy, if filed jointly; or each party will pay their own costs and fees if filed separately.... Following the bankruptey outcome, the parties may come back to the court for the final divorcee.

Neither party objected to this order.

T7 On June 14, 2010, the trial court entered a bifurcated divorce decree, and on September 8, 2010, held a trial regarding the parties' personal property and debts. The trial court entered the final divorcee decree on November 15, 2010, which was supported by findings of fact and conclusions of law. The decree awarded Wife the marital home with $50,000 in equity in lieu of alimony, subject to its indebtedness. It ordered Husband to pay $4,400 to Wife for the medical expenses she had incurred to date due to Husband's failure to reinstate her health insurance and to pay every medical expense to be incurred by Wife from the date of the decree until Husband deeded his interest in the marital home to her. Finally, the trial court awarded Wife attorney fees of $6,025 for the time and effort required by eight pretrial hearings. Husband now appeals.

I. Contempt Orders Against Husband and Wife

A. Husband's Contempt

18 The trial court twice held Husband in contempt for his failure to comply with the order that he pay Wife's medical insurance premium. 2 We review a trial court's decision to hold a party in contempt and impose sanctions for a "clear abuse of discretion." See Barton v. Barton, 2001 UT App 199, ¶ 9, 29 P.3d 13 (internal quotation marks omitted). Contempt of court includes "disobedience of any lawful judgment, order or process of the court." See Utah Code Ann. § 78B-6-801(5) (2008). "'As a general rule, in order to 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.'" Taylor v. Taylor, 2011 UT App 331, ¶ 6, 263 P.3d 1200 (mem.) (quoting Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988)). These three elements must be shown "by clear and convincing evidence in a civil contempt proceeding." Von Hake, 759 P.2d at 1172.

19 Here, Husband contends that the trial court erred when it held him in contempt because when he was ordered to pay the insurance premium he had already ceased making payments, was under no obligation to make the payments, and did not have the resources to do so. Husband's argument misconstrues the nature of the proceedings in the trial court. Although Husband had discontinued making the premium payments when the parties separated, the Commissioner ordered him to start making those payments again on October 16, 2008.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 UT App 159, 280 P.3d 451, 709 Utah Adv. Rep. 40, 2012 WL 1957880, 2012 Utah App. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summer-v-summer-utahctapp-2012.