Allen v. Allen

483 P.3d 730

Rebecca Ellen ALLEN, Appellee,

v.Kent Darius ALLEN, Appellant.

No. 20190369-CA

Court of Appeals of Utah.

Filed February 25, 2021

Sara Pfrommer and Kathleen McConkie, Attorneys for Appellant

Russell Yauney, Attorney for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

POHLMAN, Judge:

¶1 Kent Darius Allen appeals the district court's supplemental divorce decree in his divorce from Rebecca Ellen Allen. Kent¹ contends that the court erred in finding him in contempt and in its determinations regarding alimony, child support, and child custody. We reject his arguments and affirm.

BACKGROUND

¶2 Kent and Rebecca were married in 2004 and have five minor children. They separated in September 2014, when Rebecca moved to Utah with the children and Kent stayed in Texas. During this time, Rebecca worked part-time and provided full-time care for the children, while Kent did not work but received disability payments based on a 100% disability rating from the United States Department of Veterans Affairs (VA).

¶3 Rebecca filed for divorce in Utah in October 2015. Kent moved to Utah in the spring of 2016. Early in the litigation, in July 2016, Rebecca moved for an award of half of retroactive benefits Kent received from the VA. Rebecca claimed she was entitled to $56,171 of those benefits as rehabilitative spousal support. In responding to the motion, Kent filed a declaration in which he did not dispute receipt of the VA benefits. And in his August 2016 financial declaration, Kent acknowledged receiving around $89,900 as a "VA Disability Settlement minus attorney fees."

¶4 A domestic relations commissioner conducted a hearing in August 2016. The commissioner recommended, among other things, that Kent and Rebecca have temporary joint legal custody of their children and that Rebecca have temporary physical custody. The commissioner also recommended that Kent pay Rebecca $44,500 from the VA benefits and around $1,200 in monthly child support. These recommendations were memorialized in a temporary order entered and counter-signed by the district court in October 2016 (the Temporary Order).

¶5 Kent objected to the Temporary Order. The district court held a hearing on November 3, 2016, in which it overruled the objection and adopted the commissioner's recommendation. It also ordered Kent to pay Rebecca her share of the VA benefits "within 30 days."

¶6 On December 9, 2016, Rebecca moved for an order to show cause, asserting, among other things, that Kent was in contempt for not complying with the court's order to pay her portion of the VA benefits. Rebecca thus asked for a judgment against Kent in the amount of $44,500. After a hearing, the commissioner entered an order certifying the issue of contempt for Kent's "failure to pay the spousal support award of [$44,500]" as required by the Temporary Order. The commissioner's order also stated that a "judgment in the amount of [$44,500] for spousal support arrears shall enter for the period of October 28, 2016, through March 2, 2017" (the Judgment).² The district court counter-signed the Judgment.

¶7 In May 2017, Rebecca filed another motion for an order to show cause, asserting that Kent should be held in contempt for failing to pay child support between December 2016 and April 2017. Kent responded that he had already paid $11,294 of his social security benefits to Rebecca and that those funds covered his child support obligation for the time period at issue as well as for four additional months. After hearing argument, the commissioner certified the issue of Kent's alleged contempt. The commissioner also ordered entry of judgment against Kent for $4,792 in past-due child support from December 2016 through May 2017. The court counter-signed the order entering judgment for $4,792.

¶8 Rebecca filed yet another motion for an order to show cause in October 2017, this time asserting that Kent had not paid child support from June to September 2017. After a hearing, the commissioner certified the contempt issue and awarded judgment to Rebecca for $4,722 in past-due child support for the months of June through November 2017. The court counter-signed this order. Consequently, Kent had accumulated judgments against him totaling $54,014 for unpaid child support and retroactive spousal support.

¶9 Meanwhile, Kent filed various motions in which he argued that the division of his VA benefits, as ordered in the Temporary Order, was impermissible under federal law and that the $44,500 Judgment should be vacated. The commissioner had certified the issue for trial, but before trial, the district court concluded that the VA benefits can be used for spousal support and, therefore, there was no basis to vacate the Judgment.

¶10 The court entered a bifurcated divorce decree in August 2017. The issues of child support, custody, and contempt were tried to the bench in 2018. Additionally, at trial, Kent once again argued that the Judgment should be vacated. He proposed "two ways to fight that judgment." First, he renewed his argument that his VA benefits were beyond the court's reach under federal law. Second, he objected to characterizing the $44,500 award in the Judgment as spousal support because "the court has engaged in none of the analysis required to determine a reasonable amount for spousal support or to make such [an] award." As for Rebecca, she clarified that she was not asking for "future spousal support" but that she "expected that judgment to be enforced."

¶11 Rebecca and Kent each testified at trial. Notably, the court found Rebecca "to be highly credible," while it found Kent "not to be credible" based on his "testimony, conduct, and a series of inconsistencies."

¶12 With regard to the Judgment, the court disagreed with Kent's argument that it was erroneous for $44,500 in spousal support to remain in effect unless the court conducted an analysis of Rebecca's needs and his ability to pay. It explained,

There was a court order requiring [Kent] to pay [Rebecca] $44,500. [Kent] did not do so. Judgment was, therefore, appropriately entered against [Kent]. This Court need not undergo any sort of analysis concerning the parties’ current financial needs or [Kent's] ability to pay in order to permit the judgment to remain in effect.

The court also decided, in the alternative, that "[e]ven if ... such an analysis was required," Kent "had the ability to pay and that the needs analysis at the time of the hearing on the [motion] for temporary orders supported the $44,500 award to [Rebecca] and subsequent judgment against [Kent]." The court thus proceeded to compare, albeit briefly, Kent's and Rebecca's incomes and assets.

¶13 The court evaluated Rebecca's assertion that Kent was in contempt for not paying the $44,500 from the VA benefits and not paying child support from December 2016 through September 2017. As an initial matter, the court determined that the Temporary Order requiring those payments was lawful. Then, in evaluating contempt, the court first found that Kent had the ability to comply with the Temporary Order at the time it was entered and had the present ability to comply with it. In support of this finding, the court rejected Kent's assertion that he had spent all the VA benefits (nearly $90,000). The court also found that despite Kent's "disability rating and the fact that he has not held a regular job in a number of years, the evidence at trial showed that [Kent] is physically and mentally able to work, yet he chooses not to." The court further found that Kent had "access to significant financial support from his family which support could be used to help" Kent obtain employment or pay the outstanding amounts he owed. Second, the court found that Kent undisputedly "had knowledge of all the Court's orders requiring him to pay [Rebecca] $44,500 from his VA past-due benefits and to pay child support." Third, the court found that Kent had "deliberately chose[n] not to comply" with the orders when he "personally disagree[d]" with them but was "aware—at all times—of the Court's orders and [its] repeated rejections of his arguments."

¶14 The court thus held Kent in contempt, finding "beyond a reasonable doubt that, at all times, [Kent] knew what was required of him, had the ability to comply, and intentionally refused to do so."³ Indeed, the court found that his "disregard of the Court's orders—including the multiple times the Court has rejected [his] arguments—was willful, deliberate, and intentional."

¶15 As a sanction for his contempt, the court ordered Kent jailed for ten days, which sentence could be purged if Kent made certain payments toward child support and spousal support within sixty days and continued to make specified monthly payments thereafter. Additionally, the court ordered Kent to pay Rebecca's attorney fees incurred "in prosecuting the request for entry of judgment and motions for contempt."

¶16 The district court also awarded Rebecca sole physical and legal custody of the minor children, while Kent was awarded parent-time. In making this decision, the court considered several factors bearing on the best interests of the children. First, it found that the parties’ past conduct and moral standards favored Rebecca. It reasoned that Kent "testified untruthfully" and had "shown contemptuous disregard of the Court's orders," demonstrating that he was "willing to and ha[d] willfully disobeyed the law." In the court's view, this "type of conduct suggest[ed] questionable parenting, at best." The court also reasoned that Kent's "refusal—for years—to pay the spousal support award or the child support previously ordered ... while [Rebecca] was struggling to provide for herself and the [children] demonstrate[d] a substantial indifference towards" the children. Although Kent claimed that he took care of the children "in other ways—not just financially, but physically, emotionally, and spiritually," the court discredited...