Allen v. Ciokewicz

Decision Date01 June 2012
Docket NumberNo. 20110009–CA.,20110009–CA.
Citation2012 UT App 162,709 Utah Adv. Rep. 5,280 P.3d 425
PartiesChristina ALLEN, Petitioner and Appellee, v. James N. CIOKEWICZ, Respondent and Appellant.
CourtUtah Court of Appeals


Guy L. Black, Provo, for Appellant.

Gary G. Kuhlmann and Nicolas David Turner, St. George, for Appellee.

Before Judges McHUGH, VOROS, and DAVIS.


McHUGH, Presiding Judge:

¶ 1 James N. Ciokewicz (Husband) appeals from the Decree of Divorce entered by the trial court, arguing that the court erred in striking his answer and entering a default judgment in favor of Christina Allen (Wife). Husband further asserts that he did not receive constitutionally adequate notice of the property division hearing. In addition, Husband claims that the trial court erred by failing to classify property as marital or separate, by failing to divide the marital property equitably, and by awarding attorney fees to Wife. We affirm in part, and reverse and remand in part.


¶ 2 Husband and Wife married on June 13, 1987; they had no children together. Throughout the twenty-one-year marriage, Husband received federal disability income and Wife worked outside the home. Wife filed a petition for divorce on March 7, 2008. While the divorce was pending, Wife lived at the couple's marital home in Washington County and Husband moved to California, where the couple had lived before moving to Utah.

¶ 3 In her petition, Wife asserted that Husband's physical abuse forced her to flee the marital home temporarily and enter a domestic violence shelter.2 Wife further alleged that while she was at the shelter, Husband disposed of “virtually all of [her] personal belongings and clothing.” On March 17, 2008, Husband filed an answer and a motion requesting possession of the marital home until it could be sold, temporary distribution of the marital property, and temporary support. Husband indicated that he had been disabled since 1984, was unable to work, and relied solely on disability income of $1,225 per month. Wife conceded that the marital home should be sold, but she otherwise opposed Husband's motion. Wife claimed that she had no funds available to provide Husband with temporary support because she was paying the couple's expenses, including the mortgage on the marital home. Wife also asserted that Husband was able to work.

¶ 4 On April 7, 2008, Husband requested that his motion for temporary support be submitted for decision or hearing. In addition, Husband filed a notice of pendency of action (lis pendens) claiming an equitable interest in the marital home, which was titled only in Wife's name. Subsequently, Husband and Wife stipulated to a discovery schedule, and Husband filed his initial disclosures. On May 5, 2008, Wife served Husband with notice that she would take his deposition on June 11, 2008. Husband sought permission from the trial court to pay his deposition costs and attorney fees from a marital savings account, claiming that he had a fixed income of approximately $1,000 a month in disability income and that he was homeless.

¶ 5 On May 16, 2008, Husband filed a divorce petition in California. He then sought a temporary restraining order in the California action, asking for use of the marital home and claiming that Wife was abusive. The California court denied the motion and dismissed the divorce petition, concluding that Utah had properly exercised jurisdiction over the divorce and, thus, California did not have jurisdiction.

¶ 6 On May 30, 2008, Husband moved to reschedule the Utah deposition, mediation, and a hearing on temporary orders because he was unable to travel due to “serious medical conditions.” Husband attached a doctor's note, stating that he was suffering from “stress and depression and going through a lot of hardship and unable to travel for at least 90 days while going through treatments.” On June 3, Husband filed a supplemental motion with a second doctor's note explaining that Husband had been undergoing treatment since March 24, 2008, for “Clinical Depression, Hypertension, Neck and Back Pain.” In the note, the doctor stated, “I do not feel he is capable of facing more stress or be[ing] placed in an environment he may deem hostile.” The trial court denied the motion to reschedule the deposition and refused to continue the hearing.

¶ 7 Nevertheless, the parties stipulated to move the deposition, mediation, and hearing to August. One day before the scheduled August 6 deposition, Husband sought a continuance. The court denied the motion, and Husband failed to appear. Husband's counsel stated on the deposition record that Husband did not appear because of “serious [health] conditions” and a lack of financial means. When counsel also indicated that Husband would not attend the mediation scheduled for the next day, Wife canceled it.

¶ 8 On August 8, 2008, Husband moved to disqualify the trial judge on the ground that the judge was biased against him. As a result, the hearing on Husband's motion for temporary orders was postponed so that the associate presiding judge of the Fifth District Court could review and decide the motion to disqualify. SeeUtah R. Civ. P. 63(b)(2) (requiring a judge who is the subject of a motion to disqualify to discontinue ruling on any motions and forward the motion to disqualify to a different judge for review). After the reviewing judge denied the motion to disqualify, the trial court denied Husband's motionfor payment of deposition costs and attorney fees from the marital savings account.

¶ 9 In response, Husband again turned to the California courts, where he filed another temporary restraining order, seeking to enjoin Wife from occupying the marital home. Then, on November 18, 2008, Husband filed a claim for his marital interest in Wife's California Public Employees' Retirement System (CalPERS) account. As a result, CalPERS began withholding one-half of Wife's monthly allowance of retirement pension benefits and declined to release the funds to Wife without a court order.

¶ 10 Meanwhile, the Utah proceedings continued. Husband failed to appear at a November 25, 2008 hearing on his motion for temporary orders. At the hearing, Wife acknowledged that she had used money from a marital account to make home repairs, to replace clothing and personal belongings taken by Husband, and to pay her attorney fees. She also testified that she earned roughly $1,600 each month through her employment and reported that Husband's disability income was $1,400 a month.3 Wife did not know whether Husband was working but claimed he was able to do so. Wife further testified that she was paying all the marital bills, including the mortgage and utilities on the marital home, as well as the insurance and registration on the automobile, all-terrain vehicle (ATV), and trailer that Husband had taken with him to California. Wife indicated that she also paid some of Husband's cellular telephone bills after the separation. At the conclusion of the hearing, the trial court awarded wife temporary use of the marital home and denied Husband's request for temporary support.

¶ 11 On January 5, 2009, Wife filed an ex parte motion with the Utah court to reinstate her full retirement payments from the CalPERS account. Wife argued that Husband had misrepresented the nature of the divorce action to CalPERS and had also violated a Utah order to preserve the marital assets. According to Wife, she needed the retirement funds to pay the mortgage and other bills. Husband responded that he was merely trying to preserve his one-half interest in the CalPERS account. The trial court scheduled a hearing on the matter for January 30, 2009.

¶ 12 Claiming financial hardship, Husband asked the court to continue the hearing to a date closer to February 11, when he had arranged a ride to Utah for a hearing in a separate action. Wife opposed the motion, disputing Husband's financial hardship claim and providing an affidavit of a witness who claimed to have seen Husband outside the St. George courthouse on a day he failed to appear at a hearing in the protective order case. Husband sent the trial court a letter on January 28, 2009, in which he claimed to be “physically unable to attend” the January 30 hearing because of “excoriating [sic] abdominal and back pain.” Husband attached a January 23, 2009 hospital discharge form. The trial court issued an ex parte order that required Husband to facilitate the reinstatement of Wife's retirement benefits, and rescheduled the hearing to June 9, 2009.

¶ 13 On March 11, 2009, Wife moved to strike Husband's answer and for the entry of a default judgment under rule 37 of the Utah Rules of Civil Procedure. She argued that Husband had “willfully failed to participate in discovery or in prosecuting” the case, and instead had “engaged in persistent dilatory tactics.” Wife noted that while claiming he was unable to engage in the Utah proceedings, Husband had actively litigated in California by filing a divorce petition, seeking protective orders, and freezing the CalPERS account. Although each of Husband's California proceedings had been unsuccessful, Wife stated that they had cost her over $10,000 to defend. Husband filed a response, asserting that he had not attended the deposition because of his doctor's advice that he was “unable to travel safely.” He further argued that the California litigation was based on the advice of his California attorney and that the Utah trial court lacked jurisdiction to determine whether the California actions were frivolous.

¶ 14 On June 9, Husband failed to appear at the hearing regarding the CalPERS account. Husband's counsel informed the trial court that while en route to Utah, Husband had been hospitalized in Mesquite, Nevada. Thereafter, Wife twice supplemented her motion to strike Husband's answer, first with a complaint to the Utah State Bar that Husband had filed against Wife's counsel, and next with a motion for a restraining order that he had filed...

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