Widdison v. Kirkham

ORME, Judge

Opinion Third District Court, Salt Lake Department
The Honorable Paige Petersen
No. 034903241 Larry A. Kirkham, Attorney for Appellant Suzanne Marelius, Attorney for Appellee JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE A. TOOMEY concurred. ORME, Judge: ¶1 Appellant Janae A. Kirkham (Wife) again appeals the trial court's findings and modification order as well as the award of attorney fees to Appellee Jamie Widdison (Husband). We largely affirm but remand for recalculation of the attorney fee award.

¶2 Wife and Husband divorced in 2003. The divorce decree awarded the parties joint legal and physical custody of their three children. In 2011, Husband filed a petition to modify child support, requesting that he be allowed to claim the tax exemption for their youngest child (Child), that the health insurance options for Child be reevaluated, and that Wife's interference with his parent time be addressed. The trial court granted Husband's petition (the 2012 Order), awarding him the tax exemption for Child for the tax years 2009 through 2012, with the option to purchase Wife's 2013 exemption; requiring the parties to disclose all available health and dental benefits for Child; and enforcing the parent-time and transportation provisions of the divorce decree. Because Husband substantially prevailed on all claims, the trial court awarded him attorney fees. ¶3 Wife appealed the 2012 Order. See Widdison v. Widdison, 2014 UT App 233, 336 P.3d 1106. On appeal, we concluded that the trial court's findings regarding the tax consequences of Wife losing the 2009, 2010, and 2011 tax exemptions, and Husband's removal of Child from his health insurance, were insufficient. Id. ¶¶ 7, 10, 14-15. We also determined that "Wife's continued opposition" to the tax-exemption issue was not unreasonable, and we therefore vacated the trial court's award of attorney fees to Husband. Id. ¶¶ 19-20 (quotation simplified). We remanded with instructions that the trial court enter additional findings on these issues. Id. ¶ 21. ¶4 On remand, the trial court determined that the tax-exemption issue had been resolved prior to the trial scheduled on remand. It also found that although Husband had removed Child from his health insurance for one year, Wife owed Husband for his costs of carrying health insurance for Child from 2009 to 2014. But it concluded that Husband could not recover these costs because he had waited too long to demand payment. The trial court also reinstated Husband's attorney fee award. And it held Wife in contempt for failing to comply with the 2012 Order and directed her to pay the attorney fees Husband incurred as a result of her contempt. ¶5 In response, Wife filed motions for a new trial and to amend or alter judgment on various grounds, including that child support should be retroactively increased, that the court's finding of contempt was not factually supported, and that she should have been awarded the value of the 2012 tax exemption. The trial court denied the motions. Wife appeals the trial court's orders entered on remand.

¶6 Wife contends that the trial court erred in shifting the tax exemptions for Child to Husband for the tax years 2009 through 2012. We review findings of fact for clear error, and "a trial court's factual finding is deemed clearly erroneous only if it is against the clear weight of the evidence." Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶ 12, 54 P.3d 1177 (quotation simplified). Wife next contends that she should not have been held in contempt for failing to comply with the trial court's orders. "We review a trial court's decision to hold a party in contempt and impose sanctions for a clear abuse of discretion." Summer v. Summer, 2012 UT App 159, ¶ 8, 280 P.3d 451 (quotation simplified). And finally, Wife contends that the trial court erroneously awarded attorney fees to Husband. A trial court's award of attorney fees in a divorce proceeding is reviewed for abuse of discretion. See Allen v. Ciokewicz, 2012 UT App 162, ¶ 25, 280 P.3d 425.

¶7 Wife argues that the trial court erred in awarding Husband the tax exemptions for Child for the tax years 2009 through 2012 and that the court did not follow our mandate to make further findings on this issue. Because the trial court failed to address whether shifting the tax exemptions to Husband would trigger an Internal Revenue Service audit and subject Wife to fines, we had, indeed, instructed the court on remand to make further findings on the tax consequences for Wife in filing amended tax returns for 2009, 2010, and 2011. See Widdison v. Widdison, 2014 UT App 233, ¶¶ 7, 9-10, 336 P.3d 1106. erred in finding that the parties had settled the issue; rather, she proceeds to argue why she is entitled to the benefit of the tax exemptions for Child. Because Wife failed to marshal the evidence supporting the trial court's findings or otherwise demonstrate how the court erred in its findings and decision, Wife has failed to meet her burden of persuasion on appeal, and her challenge fails.

¶11 Wife argues that the trial court abused its discretion by finding her in contempt on remand for failing to comply with the 2012 Order that required her to sign the necessary tax documents. Contempt of court includes "disobedience of any lawful judgment, order or process of the court." Utah Code Ann. § 78B-6-301(5) (LexisNexis 2012). "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." Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded by statute on other grounds as stated in Valerios Corp. v. Macias, 2015 UT App 4, 342 P.3d 1127. And "[t]hese three elements must be proven . . . by clear and convincing evidence in a civil contempt proceeding." Id. ¶12 Wife asserts that she "was always willing to sign the amended tax returns as ordered" but that she was never given an opportunity to do so. We disagree with her position. In 2012, at the close of trial, the court ordered the parties to file the necessary tax documents to shift the tax exemptions for Child for the tax years 2009 through 2012 to Husband. Husband's attorney responded that, in two weeks, she would have the documents in her office for Wife to sign. But Wife did not show up to sign those documents. Husband's attorney then sent Wife letters indicating that she needed to sign the tax documents, but Wife refused to cooperate. Three months later, at a hearing with the district court commissioner, Wife was ordered to sign the tax documents in court that day, but Wife did not. In view of Wife's continued refusal to cooperate, the court ultimately signed on her behalf the tax forms shifting the tax exemptions for Child to Husband. ¶13 Wife admits she was aware that the trial court ordered her to sign the necessary tax documents, but she asserts that Husband never provided her with those documents to sign and, for that reason, she could not comply. The record does not support her claim. Wife was given the amended tax returns prior to the trial court's orders and had ample opportunity to sign them after the 2012 Order. Because there is clear and convincing evidence that Wife knew she was required to sign the necessary documents to shift the exemptions over to Husband, had the ability to comply with that requirement, and was capable of cooperating with Husband to accomplish this simple task but refused to do so, we conclude that the trial court did not abuse its discretion by holding Wife in contempt.

¶14 Wife contends that the trial court went beyond the scope of our remand when it awarded attorney fees to Husband. Attorney fees are generally "awarded only when authorized by contract or by statute." Bilanzich v. Lonetti, 2007 UT 26, ¶ 11, 160 P.3d 1041. In divorce and modification proceedings, trial courts may award attorney fees under Utah Code section 30-3-3. granted attorney fees on remand for the issues raised in the instant appeal. We therefore conclude that neither party is entitled to attorney fees incurred in this appeal.

¶18 We affirm the trial court's findings and rulings on the tax-exemption issue and its contempt order against Wife. We also affirm its award of attorney fees to Husband to the extent it reimburses Husband for his attorney fees incurred in enforcing the order for parent time and insofar as fees were awarded as a contempt sanction, and we remand for the trial court to recalculate the award accordingly.