Thomas v. Thomas, 14503

• Decision Date: 23 September 1977
• Docket Number: No. 14503,14503
• Citation: 569 P.2d 1119
• Parties: June Marlene THOMAS, Plaintiff and Respondent, v. Harry Edward THOMAS, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1119

569 P.2d 1119

June Marlene THOMAS, Plaintiff and Respondent, v. Harry Edward THOMAS, Defendant and Appellant.

No. 14503.

Supreme Court of Utah.

Sept. 23, 1977.

Ronald C. Barker, Salt Lake City, for defendant and appellant.

Jay D. Edmonds, Salt Lake City, for plaintiff and respondent.

CROCKETT, Justice:

Defendant, Harry Edward Thomas, appeals from an order sentencing him to 30 days in jail for contempt of court for failure to comply with a divorce decree in which he was ordered to deliver to Plaintiff, June Marlene Thomas, ten shares of stock in Ute Distributing Company.

The decree was entered April 23, 1970. Among a number of things, not material here, defendant was ordered to deliver to plaintiff the aforementioned stock. On June 26, 1974, the defendant was before the court in response to an order to show cause why he had not delivered the stock. The trial judge took the matter under advisement. On July 12, 1974, there was recorded a minute entry of his decision that "the court concludes plaintiff is entitled to an order ordering defendant to deliver to her within 10 days from the date of the order herein 10 shares of stock of Ute Distributing Company." This was implemented by written Findings of Fact and Judgment signed and entered on January 3, 1975.

Again on January 23, 1976, the defendant was before another division of the district court in response to a similarly based order to show cause. It was stipulated that the stock had not been delivered. Defendant moved to dismiss on the ground that the plaintiff had failed to show that he had the ability and wilfully failed to deliver the stock. The court heard testimony on that day and also on January 30, 1976, concerning various transfers of stock of three corporations, Ute, Titan, and Eagle, which seem to be owned by the defendant's family.

At the conclusion of the testimony, the court took the matter under advisement. In a memorandum decision dated February 9, 1976, the judge stated: "Defendant's own lack of recollection of facts relating to the foregoing matters made it difficult to ascertain reasons for the transfers related or his connections therewith, but it is apparent that he has not complied with the court's order of January 3, 1975, and he has failed to satisfy me that he is not in contempt of this court. I thus find that he is in contempt of court . . . ." There are no further findings of fact, conclusion of law or written order or judgment in the record, except a minute entry of March 2, 1976, that: the court orders "defendant to serve 30 days in jail."

In addition to the defendant's above-stated contention that it is not shown that he had the ability and wilfully refused to deliver the stock, the defendant attacks the jail sentence imposed upon him on the ground that it is without a foundation in written findings and judgment.

The soundness of defendant's contention that there must be written findings and judgment relating to such a contempt is not to be questioned. ¹ However, we also agree with the plaintiff's rejoinder that the trial judge's memorandum decision can be regarded as findings of fact. ² But this is of course limited to such findings as are recited therein.

It is true, as plaintiff contends, that where there is a judgment that a party do an act, such as to deliver stock or a deed, which judgment stands unattacked, it is presumed that the party has the ability to perform; ³ and that a complainant makes a prima facie case of contempt by showing failure to comply with the judgment. But where there is evidence concerning justification for the failure, the ultimate burden of proving that the party charged is in contempt is on the complainant. ⁴ In that regard there are certain principles concerning contempt which should be considered.

Under what we regard as a view more enlightened than prevailed in former times, the mere failure to pay a debt or meet an obligation is not punishable by imprisonment. ⁵ However, when a proper order or judgment has been made, one who stands in wilful defiance or disobedience thereof may be found in contempt of court and punished by imprisonment. This is a necessary power of the court in order to enforce its orders and judgments. Such procedure provides an effective aid in administering justice by giving effect to the judgment; and it has the adjunctive purposes of punishing a contumacious offender, and of warning others not to so offend.

Although technically civil in nature, the finding of a person in contempt and sentencing him to jail is of very serious consequence to the person involved, somewhat akin to a criminal penalty. It is for this reason that such a severe measure is not permissible unless a party has manifested such obstinacy in disobedience of the court order that it is necessary to accomplish that which equity and justice demand. Accordingly, in order to justify a finding of contempt and the...