Summer v. Summer

• Decision Date: 01 June 2012
• Docket Number: No. 20101004–CA.,20101004–CA.
• Citation: 280 P.3d 451,709 Utah Adv. Rep. 40,2012 UT App 159
• Parties: Ellery Bruce SUMMER, Petitioner and Appellant, v. Mary Paige SUMMER, Respondent and Appellee.
• Court: Utah Court of Appeals

280 P.3d 451

709 Utah Adv. Rep. 40

2012 UT App 159

Ellery Bruce SUMMER, Petitioner and Appellant,

v.Mary Paige SUMMER, Respondent and Appellee.

No. 20101004–CA.

Court of Appeals of Utah.

June 1, 2012.

Jay L. Kessler, Magna, for Appellant.

Gary Buhler, Grantsville, for Appellee.

Before Judges McHUGH, ROTH, and CHRISTIANSEN.

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 divorce 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 polic[ies] 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.

¶ 3 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.

¶ 4 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 second 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.

¶ 5 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 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.

¶ 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 bankruptcy 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 bankruptcy 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 bankruptcy outcome, the parties may come back to the court for the final divorce.

Neither party objected to this order.

¶ 7 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 divorce 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

¶ 8 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.” SeeUtah Code Ann. § 78B–6–301(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.

¶ 9 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. At the November 3, 2008 order to show cause hearing before the Commissioner, Husband raised no objection to Wife's argument that, although the insurer had cancelled Wife's policy due to nonpayment, it could be reinstated. Furthermore, at the hearing before the trial court on February 10, 2009, Husband steadfastly denied that he had been ordered to maintain Wife's health insurance, without indicating that he had been unsuccessful in having it reinstated. Tellingly, Husband's counsel assured the trial court that Husband was familiar with the order but simply disagreed with it. The trial court also heard evidence that Husband had sufficient funds to make cash gifts to his children from a prior marriage and to pay other bills but had made the unilateral decision not to make the premium payment necessary to maintain Wife's health insurance.

¶ 10 Based on these facts, we cannot conclude that the trial court's first finding of contempt was an abuse of discretion. There is clear and convincing evidence that Husband knew that he had been ordered to resume making the premium payments for Wife's health insurance and had the ability to pay for the insurance but “spitefully” decided to give money to his children and pay less critical bills instead. Additionally, it appears, at least at this time, that it was within Husband's ability to reinstate Wife's insurance. Wife informed the Commissioner that she had checked and confirmed that the insurance company would reinstate the insurance “based on the [court's] order,” the Commissioner agreed, and Husband raised no concerns about doing so at that time. Even three months later at the February 10, 2009 hearing to consider the Commissioner's contempt recommendation, Husband agreed to reinstate Wife's policy without offering any indication that he could not do so. It was not until the June 8, 2009 hearing that Husband first indicated that he was unable to reinstate Wife's health insurance. While Husband may have accurately reported that reinstatement was not possible at that time, there is nothing in the record on appeal that indicates he could not have done so eight months earlier if he had complied with the Commissioner's October 16, 2008 order. Accordingly, we affirm the trial court's contempt order with respect to the first order to make the premium payments.

¶ 11 The trial court held Husband in contempt again at the June 8, 2009 hearing. On appeal, however, Husband has only provided the minute entry of this hearing and no transcript of the proceedings, which leaves us with no way to ascertain the trial court's basis for the finding of contempt. See State v. Nielsen,...