Wright v. Wright

• Decision Date: 03 July 1997
• Docket Number: No. 960367-CA,960367-CA
• Citation: 941 P.2d 646
• Parties: 320 Utah Adv. Rep. 39 Paula Jean WRIGHT and the State of Utah, by and through Utah State Department of Social Services, Plaintiffs and Appellants, v. Johnny Frank WRIGHT, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 646

941 P.2d 646

320 Utah Adv. Rep. 39

Paula Jean WRIGHT and the State of Utah, by and through Utah State Department of Social Services, Plaintiffs and Appellants, v. Johnny Frank WRIGHT, Defendant and Appellee.

No. 960367-CA.

Court of Appeals of Utah.

July 3, 1997.

Floyd W. Holm, Cedar City, for Plaintiffs and Appellants.

Willard R. Bishop, Cedar City, for Defendant and Appellee.

Before DAVIS, WILKINS and ORME, JJ.

OPINION

WILKINS, Associate Presiding Judge:

Paula Jean Wright (Mother) appeals two orders and a judgment entered by the trial court affecting the custody of the parties' child: (1) an order imposing several discovery sanctions on Mother, including a judgment by default; (2) the judgment by default, which transferred custody of the parties' child from Mother to Johnny Frank Wright (Father); and (3) an order denying her motion for relief from the judgment by default. We affirm the trial court's order imposing sanctions on Mother, but vacate the judgment by default and remand for further proceedings.

BACKGROUND

Mother and Father divorced in February 1991, at which time Mother was granted custody of their child. In August 1995, Father filed a petition to modify the divorce decree, by which he sought custody of the parties' child. In September 1995, Mother filed both an answer to Father's petition and a counter-petition, by which she sought increased child support and attorney fees.

In October 1995, Father submitted his first set of discovery requests to Mother. That same month, Mother also submitted her first set of discovery requests to Father. Then, before answering Father's requests for discovery, Mother's attorney, Michael Park, withdrew as her counsel on January 26, 1996. At the end of that month, Father's attorney sent Mother a document entitled Notice to Appoint Counsel or to Represent Self. This short document states that it is providing notice to Mother that, because her counsel had withdrawn, she needs to either appoint counsel or represent herself in the pending matter.

In April 1996, Father filed a motion (motion for sanctions) requesting that the trial court strike Mother's answer and counter-petition and enter judgment in favor of Father. Father sought these sanctions because Mother had not responded to his discovery requests. Although Father admitted that he had not responded to Mother's discovery requests either, he contended that Father's attorney and Mother's former attorney had agreed that Mother should respond to Father's requests first. On April 23, 1996, the trial court entered an order granting Father's motion for sanctions. As part of the order, the trial court made orders striking Mother's answer and counter-petition from the record, entering Mother's default, and entering judgment by default. As part of the same document, the trial court also set forth the judgment by default, which judgment included transferring custody of the parties' child from Mother to Father.

On May 2, 1996, after obtaining new counsel, Mother filed a motion for relief from both the court's order imposing sanctions and the judgment by default. Through this motion, Mother requested that the court set aside the order and judgment, which request, she argued, was warranted by excusable neglect. Mother also filed both a motion for a stay of execution of the court's first order and a request for an expedited hearing and decision. In support of her motions, Mother filed an affidavit explaining the circumstances she believed constituted excusable neglect for her failure to timely answer Father's discovery requests.

In her affidavit, Mother explained that her former attorney, Mr. Park, had mailed a copy of Father's discovery requests to her in October 1995. Because Mother heard nothing further from her attorney, and because she had heard from others that Father was experiencing marital problems, she thought the matter had been dropped. In January 1996, she received the notice of withdrawal from Mr. Park, followed by the notice from Father's attorney to appoint counsel or to represent herself.

Mother again did not hear anything until early April 1996, when she received Father's motion for sanctions. Upon receiving that motion, Mother immediately sought assistance from Mr. Park. Mr. Park told her he would not represent her unless she paid him a retainer fee. Because she could not afford to pay a retainer fee, Mr. Park suggested she contact Utah Legal Services, which had represented her in her divorce proceeding.

Mother then called Utah Legal Services in Salt Lake City and was advised to contact the Cedar City Office because her case was pending in Washington County. Mother contacted the Cedar City Office. On April 24, 1996, she received a letter from Utah Legal Services advising her that, although she was financially eligible to receive representation from Legal Services, it could not handle her case. Mother then immediately contacted her current counsel, who agreed to represent her. However, by the time Mother's current counsel had reviewed her case and agreed to represent her, the trial court had already granted Father's motion for sanctions and entered the judgment by default against her. ¹

The court granted Mother's request for an expedited hearing, and the parties presented oral arguments. After hearing oral arguments and reviewing Mother's affidavit and motions, the court entered an order denying both Mother's motion for relief and her motion for a stay of execution. Mother filed this appeal.

ANALYSIS

Mother appeals from the trial court's judgment and two orders. Specifically, Mother argues the trial court abused its discretion by imposing sanctions against her, and particularly by ordering a judgment by default. Mother also argues, as her challenge to the trial court's second order, that the trial court abused its discretion by denying her motion to set aside the judgment by default. ²

A. Order Imposing Rule 37 Discovery Sanctions

Rule 37 of the Utah Rules of Civil Procedure provides trial courts with the authority to impose discovery sanctions on noncomplying parties, as the trial court imposed on Mother in this case. Rule 37(d) provides, in relevant part:

If a party ... fails ... to serve answers or objections to interrogatories ... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under Paragraphs (A), (B), and (C) of Subdivision (b)(2) of this rule.

Utah R. Civ. P. 37(d). Paragraph (C) of Subdivision (b)(2) provides that the trial court may impose the following sanctions on a party:

an order striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]

Id. 37(b)(2)(C).

To impose discovery sanctions under Rule 37, the trial court must first meet the threshold requirement of finding on the part of the noncomplying party at least one of the following four circumstances: "(1) the party's behavior was willful; (2) the party has acted in bad faith; (3) the court can attribute some fault to the party; or (4) the party has engaged in persistent dilatory tactics tending to frustrate the judicial process." Morton v. Continental Baking Co., 938 P.2d 271, 276 (Utah 1997); see also id. at 274-75. Once the trial court has made one of these four findings, the noncomplying party's conduct is considered to "meri[t] sanctions under [R]ule 37." Id. at 275-77.

In this case, the trial court fulfilled this threshold requirement by making the following finding in its order imposing sanctions:

[Mother] has failed to respond to discovery propounded by Defendant, and that such failure on the part of [Mother] has impeded and frustrated the judicial process, in that it has hindered trial of this matter upon its merits, and has made it impossible to determine the factual basis for any allegations made by [Mother] in her "Answer to Petition to Modify Decree of Divorce" and in her "Counter-Petition[.]"

In other words, the trial court "attribute[d] some fault to [Mother]," id. at 274-75, 275-77, for her failure to respond to Father's discovery requests.

Once the trial court has made one of the required four findings and thus determined that the noncomplying party's conduct merits Rule 37 discovery sanctions, the trial court can then choose which discovery sanctions are most appropriate to impose. See id. at 274-75. In this case, after attributing fault to Mother, the trial court imposed three discovery sanctions on her because she had failed to respond to Father's interrogatories. First, the trial court struck Mother's answer and counter-petition from the record. Second, the trial court entered Mother's default in regards to Father's petition. Third, the court entered a judgment by default in favor of Father and against Mother.

On appeal, Mother challenges the trial court's orders imposing these three sanctions. Particularly, Mother argues that the trial court abused its discretion by imposing the sanction of judgment by default because she contends that Utah case law has discouraged this sanction, which Mother argues should only be imposed in cases when the noncomplying party engages in egregious conduct.

We agree with Mother that the sanctions imposed on her by the trial court are harsh and extreme sanctions, especially that of judgment by default. See Utah Dep't of Transp. v. Osguthorpe, 892 P.2d 4, 7 (Utah 1995) ("The striking of pleadings, entering of default, and rendering of judgment against a disobedient party are the most severe of the potential sanctions that can be imposed upon a nonresponding party."); W.W. & W.B. Gardner, Inc. v. Park W. Village, Inc., 568 P.2d 734, 738 (Utah 1977) (calling default judgment "extreme sanction"). We also agree with Mother that judgments by default are disfavored by the law. See Osguthorp...