Anderson v. Thompson

• Decision Date: 04 January 2008
• Docket Number: No. 20070176-CA.,20070176-CA.
• Citation: 176 P.3d 464,2008 UT App 3
• Parties: Linda ANDERSON fka Linda LaRee Thompson, Petitioner and Appellee, v. Glenn Hunter THOMPSON, Respondent and Appellant.
• Court: Utah Court of Appeals

176 P.3d 464

2008 UT App 3

Linda ANDERSON fka Linda LaRee Thompson, Petitioner and Appellee, v. Glenn Hunter THOMPSON, Respondent and Appellant.

No. 20070176-CA.

Court of Appeals of Utah.

January 4, 2008.

Bruce L. Richards and Dean A. Stuart, Salt Lake City, for Appellant.

David J. Friel, Salt Lake City, for Appellee.

Before Judges BILLINGS, DAVIS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 Respondent Glenn Thompson (Husband) appeals from the trial court's order, which awarded Petitioner Linda Anderson (Wife) a judgment, found Husband in contempt of court for violating the parties' Decree of Divorce, and awarded attorney fees to Wife. We affirm in part, reverse in part, and remand for the entry of more detailed findings of fact regarding the award of attorney fees.

BACKGROUND

¶ 2 Husband and Wife married on June 12, 1987, and divorced on April 20, 1999. Four children were born during the course of the marriage. Paragraph nine of the parties' Decree of Divorce (the Decree) stated that "[u]pon the termination of alimony.... [Husband's] monthly child support obligation shall be automatically increased each year by .7% (.007) of [Husband's] gross business receipts ... in order to preserve the ratio of monthly child support to [Husband's] yearly gross business receipts." Paragraph ten of the Decree required Husband to make several payments to Wife "for the benefit of the children in addition to child support," including money for Christmas and all costs for "non-school extra-curricular activities and lessons." Paragraph twenty of the Decree required Husband to pay Wife "a reasonable annual `cost of living' increase in alimony."

¶ 3 The parties also entered into a verbal agreement to resolve certain issues not addressed in the Decree. One aspect of Husband and Wife's verbal agreement required the parties to split equally the cost of all of their children's non-school extracurricular activities. A second aspect of the verbal agreement was that Husband would pay Wife's income taxes that were "above and beyond $1200 per month." Both parties complied with the Decree and their oral agreement until 2004, when, according to Wife, Husband failed to pay for the children's extracurricular activities and for Wife's taxes.

¶ 4 In March 2005, Wife filed a Motion for Order to Show Cause and a Petition to Modify Decree of Divorce, both of which alleged that Husband had failed to comply with various obligations under the Decree, including his obligation to pay increased child support upon the termination of alimony. In response, Husband filed an Answer and Counter Petition to Modify Decree of Divorce. At the hearing on the Order to Show Cause, Wife's counsel stated that the parties had reached a "partial resolution and stipulation" whereby Husband and Wife would "exchange their tax returns for the years 2002, 2003, [and] 2004." Based on this stipulation, the parties agreed to reserve the issue of increasing Husband's monthly child support obligations for a future hearing.

¶ 5 Approximately one year later, Wife filed a Motion to Compel, which alleged that Husband had failed to respond to a request for the production of documents. Specifically, the motion sought production of Husband's tax records. In an order dated June 2, 2006, the trial court denied Wife's Motion to Compel without prejudice. In its order, the court noted that Husband's "response to the document request did not provide all documents requested, but set forth explanations as to why certain documents were withheld."

¶ 6 Wife then obtained new counsel and filed a second Motion for Order to Show Cause, which alleged that Husband had failed to pay for the children's extracurricular activities, to comply with discovery requests, and to pay increased child support. At the Order to Show Cause hearing, Wife's counsel clarified that Husband had produced some of the requested tax records, but alleged that Husband had failed to produce the "critical document" showing Husband's "gross receipts or gross revenues" for 2002 through 2004. The trial court also asked why Wife had previously failed to enforce Husband's obligation to pay for extracurricular activities, to which Wife's counsel replied that Wife's view was, "`I'm not going to be able to get it out of him, so why should I try.'" Finally, after listening to Husband's arguments on the Motion for Order to Show Cause, the trial court stayed the proceedings and set a trial for the parties' petitions to modify. The court also ordered Husband to produce his tax records prior to trial.

¶ 7 During trial, Wife's counsel asked Husband whether he had sent an email to Wife that stated, "`If you are successful in raising child support, the children will suffer.'" Husband denied making such a statement, and then Wife's counsel had Husband read from a letter written by Husband, which contained the above statement. Husband's counsel objected to the admission of the letter on the grounds that it contained privileged settlement negotiations. Ultimately, the trial court admitted the letter with all but two sentences redacted.

¶ 8 Upon the completion of trial, the trial court entered Findings of Fact and Conclusions of Law. The court determined that Husband had not complied with several provisions of the Decree. First, the court found that Husband had failed to pay for the children's extracurricular activities as required by paragraph ten of the Decree. Second, the court found that Husband did not provide Wife with "a reasonable annual `cost of living' increase in alimony" as required by paragraph twenty of the Decree. Third, the court determined that Husband failed to provide his tax records to Wife as required by paragraph nine of the Decree. Further, the trial court made a specific finding, based on the parties' testimony, that Wife was credible but Husband was not. In addition, the court found that although Wife did not bring her enforcement action before the trial court for "a long period of time," such delay was reasonable because Wife had attempted to enforce the Decree several times without success.

¶ 9 Because of Husband's noncompliance with multiple provisions of the Decree, the trial court held Husband in contempt of court and awarded judgment to Wife in the amount of $44,311. In addition, the trial court awarded Wife $7652.97 in attorney fees based on the court's finding that "attorney fees are justified and necessary and reasonable."

¶ 10 Husband appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Husband asserts that the trial court erred by finding him in contempt for his alleged failure to comply with the Decree. "The decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court's action `is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.'" Marsh v. Marsh, 1999 UT App 14, ¶ 8, 973 P.2d 988 (quoting Bartholomew v. Bartholomew, 548 P.2d 238, 240 (Utah 1976)). In a related argument, Husband claims that the trial court erred by "disregard[ing] the stipulation of the parties and the law of the case . . . in finding [Husband] in contempt." We likewise review this contention for an abuse of discretion. See id

¶ 12 Second, Husband argues that the trial court exceeded its discretion by admitting a portion of a letter that contained statements made during settlement negotiations. "In reviewing the admissibility of evidence at trial, we give deference to the trial court's advantageous position, and do not overturn the result unless it is clear the trial court erred." Davidson v. Prince, 813 P.2d 1225, 1230 (Utah Ct.App.1991).

¶ 13 Next, Husband claims that Wife should be equitably estopped from receiving past alimony and child support and that Wife waived any right she had to enforce such payments. "The application of the facts to the legal standard of equitable estopppel is a mixed question of fact and law." Trolley Square Assocs. v. Nielson, 886 P.2d 61, 65 (Utah Ct.App.1994). Consequently, we review questions of fact "under a deferential clear error standard," but grant no deference to questions of law. Terry v. Retirement Bd., 2007 UT App 87, ¶ 8, 157 P.3d 362 (internal quotation marks omitted). Similarly, "`whether the trial court employed the proper standard of waiver presents a legal question which is reviewed for correctness, but the actions or events allegedly supporting waiver are factual in nature and should be reviewed as factual determinations, to which we give a [trial] court deference.'" Smile Inc. Asia Pte. Ltd. v. BriteSmile Mgmt., Inc., 2005 UT App 381, ¶ 20, 122 P.3d 654 (quoting Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572).

¶ 14 Husband also challenges the trial court's award of attorney fees to Wife. "[A] trial court must base its award of attorney fees on evidence of the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees. The decision to award attorney fees must be based on sufficient findings regarding these factors." Riley v. Riley, 2006 UT App 214, ¶ 25, 138 P.3d 84 (internal quotation marks and citation omitted).

¶ 15 Finally, Wife asserts that she should be awarded her attorney fees on appeal. "`Generally, when fees in a divorce case are awarded to the prevailing party at the trial court, and that party in turn prevails on appeal, then fees will also be awarded on appeal.'" Shinkoskey v. Shinkoskey, 2001 UT App 44, ¶ 20, 19 P.3d 1005 (quoting Marshall v. Marshall, 915 P.2d 508, 517 (Utah Ct.App.1996)).

ANALYSIS

I. Contempt of Court

¶ 16 Husband's first argument is that the trial court erred by finding him in contempt of court. "Under Utah law, `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.'" Homeyer v. Stagg &...