Henshaw v. Henshaw

• Decision Date: 22 March 2012
• Docket Number: No. 20100516–CA.,20100516–CA.
• Citation: 2012 UT App 56,702 Utah Adv. Rep. 13,271 P.3d 837
• Parties: Dana HENSHAW, Petitioner and Appellee, v. Dee A. HENSHAW, Respondent and Appellant.
• Court: Utah Court of Appeals

2012 UT App 56

271 P.3d 837

702 Utah Adv. Rep. 13

Dana HENSHAW, Petitioner and Appellee,

v.Dee A. HENSHAW, Respondent and Appellant.

No. 20100516–CA.

Court of Appeals of Utah.

Feb. 24, 2012.Rehearing Denied March 22, 2012.

Sixth District, Loa Department, 064600004; The Honorable Lyle R. Anderson, The Honorable George M. Harmond.¹Dee A. Henshaw, Washington, Appellant Pro Se.

David A. Van Dyke, Teasdale, for Appellee.

Before Judges VOROS, THORNE, and ROTH.

MEMORANDUM DECISION

ROTH, Judge:

¶ 1 Dee A. Henshaw (Husband) challenges the trial court's entry of supplemental findings of fact and conclusions of law and a supplemental decree of divorce. Husband raises ten issues on appeal. These issues can be categorized as challenges to the trial court's findings of fact relating to the real property distribution, its subsequent division of that property, its order to sell the real property, its order for Husband to remove personal property from the real property within thirty days of the issuance of the supplemental divorce decree, and its ruling that Husband had violated rule 11 of the Utah Rules of Civil Procedure. We reverse and remand the order of sale but affirm the trial court in all other respects.

I. Background

A. Relevant Facts

¶ 2 Husband and Dana Henshaw (Wife) married in August 1998. During the marriage, the parties resided in Wayne County, Utah, on the real property at issue in this appeal (the ranch). Husband acquired a majority of the ranch's acreage (the original ranch) from his mother prior to meeting Wife. In 2005, the parties purchased eight adjacent acres of property (the eight acres) with money that Husband had received from his mother. Throughout the marriage, Husband worked primarily on the ranch while Wife worked outside the home. Wife filed for divorce in May 2006. Judge Wallace A. Lee entered a bifurcated decree of divorce in April 2008 and set the unresolved question of how the real property would be divided for trial. In June 2007, however, prior to the entry of the bifurcated decree and resolution of the real property division, it appears that Husband sold the ranch, which was the parties' most significant asset.

B. Procedural Background

¶ 3 In her 2006 divorce petition, Wife requested temporary relief, including alimony, child support, and a restraining order preventing Husband from selling any property. The trial court set an order to show cause hearing on these issues for June 14, 2006, but that hearing was continued, first at Wife's request and then by stipulation of the parties, until July 2007. In August 2007, the trial court entered an order that, among other things, prohibited either party from selling any real or personal property without prior approval from the court. Less than two months later, Husband's attorney, Marsha Lang, withdrew as counsel. Husband then hired Kenneth L. Combs, who represented Husband until he moved to withdraw in March 2008 because of Husband's failure to pay and a conflict of interest. Husband then hired attorney Stephen R. Cook.

¶ 4 In December 2008, Cook moved to withdraw on the basis that Husband had failed to pay his fees. Wife opposed the motion, arguing that Cook was Husband's third attorney and Husband's previous “wholesale continued violations of this Court's Orders” had resulted in “intolerabl[e] delay[ ]” of the divorce's resolution. On January 10, 2009, Cook filed a “re-entry of appearance of counsel.” ² Two weeks later, Judge Lee recused himself from the case, and Judge Marvin D. Bagley was assigned. Husband, through Cook, moved for Judge Bagley's recusal by mail on March 11, 2009; it was received by the trial court on March 13. On March 12, 2009, however, Judge Bagley had recused himself sua sponte. Eventually, the case was assigned to Judge Harmond, a seventh district judge who was asked to temporarily serve in the sixth district to resolve this matter.

¶ 5 In June 2009, Judge Harmond entered a final pretrial order and set the matter for a two-day trial beginning July 21, 2009. On June 24, Cook again moved to withdraw as counsel, this time because of ethical issues that he did not further explain. Wife opposed counsel's withdrawal, citing the lengthy delays and encouraging the court to permit the withdrawal only if Husband “certifies to this court his appearance pro se and his absolute promise to comply with the existing Pretrial Order and be prepared to attend the trial set for July.” On July 1, Judge Harmond allowed Cook to withdraw but required Husband to appoint counsel within ten days and ordered Husband, or his new counsel, to be prepared for trial on July 21. Husband retained Douglas L. Neely on July 10, and four days later, Neely moved to continue the trial, stating that he would be out of town when the trial was scheduled and, in any event, would need additional time to prepare. On July 16, Judge Harmond denied the motion to continue, permitted Neely to withdraw as counsel, and dispensed with the requirements of rule 74 of the Utah Rules of Civil Procedure, which requires that the opposing party serve a notice to appear or appoint counsel on the newly-unrepresented party and stays proceedings “until 20 days after filing the Notice,” Utah R. Civ. P. 74(c). On July 20, the day before trial, Husband filed a pro se appearance. Husband simultaneously filed a pro se motion to disqualify Judge Harmond, alleging that the judge's decision violated rule 74 and that the judge was “biased and prejudiced” against him because the denial of the continuance “forc[ed him] to go to trial without a lawyer.”

¶ 6 The trial was postponed, and Husband's motion to disqualify Judge Harmond was assigned to Judge Anderson, who, on July 22, 2009, denied the motion on three bases. First, Husband had previously moved to disqualify Judge Bagley, and each party is limited to one such motion under rule 63(b)(1)(C) of the Utah Rules of Civil Procedure, see id. R. 63(b)(1)(C) (“No party may file more than one motion to disqualify in an action.”). Next, Husband had failed to file a certificate of good faith with his motion and a supporting affidavit as required by rule 63(b)(1)(A), see id. R. 63(b)(1)(A) (“The motion [to disqualify a judge] shall be accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias, prejudice, or conflict of interest.”). Finally, the motion lacked merit because there was nothing in the record that demonstrated that Judge Harmond held “ ‘a deep-seated antagonism toward’ ” Husband. Judge Anderson then set an order to show cause hearing at which Husband was directed to demonstrate why he had not violated rule 11 of the Utah Rules of Civil Procedure, see id. R. 11(b), (c)(1)(B) (allowing a court to direct a party to demonstrate that a motion was not submitted for an improper purpose, is warranted by existing law, and is not frivolous).

¶ 7 On July 27, 2009, after receiving Judge Anderson's ruling, Judge Harmond set a telephone conference to reschedule the trial. Neely reentered his appearance as Husband's counsel on the morning of that conference, and the bench trial was rescheduled for October 8 and 9, 2009, before Judge Harmond. Following trial, the court issued a memorandum decision in which it classified the eight acres of the ranch acquired in 2005 as marital property and the original ranch as Husband's separate property. In addition to a one-half marital interest in the eight acres, the court awarded Wife a one-half equitable interest in the original ranch. In classifying the eight acres as marital property, the court noted that Husband paid for the property with money he received as a gift from his mother. However, it was Wife's salary, as well as loans from Husband's mother and Wife's parents, that covered the parties' expenses and sustained the ranch, allowing Husband to use the gifted money toward the purchase of the additional acreage. With respect to the award of an equitable interest in the original ranch, the court found that there were “exceptional circumstances that require[d] the court to depart from th[e] general rule” that a party retains his separate property. These exceptional circumstances included Wife's work on the ranch, which contributed to its upkeep, and Wife's use of her salary from work outside the home to cover family and ranch expenses, which allowed Husband to work exclusively on the ranch. Because the evidence presented at trial did not allow the court to accurately value the ranch as of the date of the divorce decree, it ordered the ranch sold with the proceeds to be divided equally between the parties.

¶ 8 Wife's attorney subsequently submitted supplemental factual findings and legal conclusions and a supplemental divorce decree ³ to which Husband objected. Relevant to this appeal, Husband specifically contended that the supplemental findings of fact and conclusions of law included a provision requiring that he remove his personal property from the ranch within thirty days, when no such order had been made by the trial court. He also asserted that he could not comply with an order that the ranch be sold because the ranch no longer belonged to him. Judge Harmond “reviewed all of the filings and f [ound] that the Supplemental Findings and Supplemental Decree accurately reflect[ed] the court's intentions with respect to this matter, and overrule[d] the Objections filed by ... [Husband].” He then executed the supplemental findings of fact and conclusions of law and the supplemental divorce decree that are the subject of this appeal.

¶ 9 In the meantime, Judge Anderson had conducted a hearing to determine whether Husband had violated rule 11 in filing his motion to disqualify Judge Harmond. Judge Anderson concluded that Husband had done so because “the motion was filed primarily to effect a delay in the proceedings so that Neely could have more time to prepare.” The judge also cited Husband's earlier motion to...