Wallace v. Wallace

1

2024 UT App 164

James Douglas Wallace, Appellee, v. Joanna June Wallace, Appellant.

No. 20220559-CA

Court of Appeals of Utah

November 15, 2024

Third District Court, Salt Lake Department The Honorable Laura S Scott No. 194904789

S Mark Barnes, Attorney for Appellant

Alison Satterlee and Virginia Sudbury, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Ryan D. Tenney and Amy J. Oliver concurred.

OPINION

ORME Judge:

¶1 Less than two years after James Douglas Wallace and Joanna June Wallace^[1] divorced pursuant to a stipulated divorce decree, both parties filed motions to modify the decree. After contentious litigation, the trial court entered a modified divorce decree and later an amended modified divorce decree.

¶2 On appeal, Joanna makes several arguments.^[2] She first contends that the trial court erred in ruling that the non-disparagement provision she agreed to in the stipulated divorce decree did not violate her First Amendment right to free speech. She also challenges various provisions of the amended modified divorce decree: the child support award, the summer parent-time schedule, and a warning that failure to pay the special master fees may result in a change in legal custody. She also disputes the court's denial of her request for attorney fees. For the reasons set forth below we affirm.

BACKGROUND

Stipulated Divorce Decree

¶3 James and Joanna got married in 2001 and share four children-two of whom are still minors.^[3] In early 2017 the parties, both represented by counsel, divorced pursuant to a stipulated divorce decree. The parties agreed to joint physical and legal custody of the children. They designated Joanna as the primary physical custodian and the "primary for purposes of education and medical decisions," with James having parent-time pursuant to a statutory schedule.

¶4 The parties also agreed that James would pay Joanna monthly child support. Concerning their eldest child (EPW), they agreed to the following provision:

EPW has special needs. The parties shall augment child support in the amount of $500 per month. Child support for EPW (including the augmented amount) shall continue until EPW achieves the age of 21. At the time EPW is 21 the parties will review EPW's medical evaluations and work cooperatively together to make a plan for his support into adulthood.

¶5 The decree also included the following stipulation concerning non-disparagement:

In an effort to keep a peaceful co-parenting relationship, both parties shall be mutually enjoined and restrained from making negative, disparaging or derogatory comments to or about each other. This provision includes all communication between the parties or to third parties, whether by text message, email, direct phone calls, voice messages or face-to-face communication.

. . . Both parties shall be mutually enjoined and restrained from communications about or involving past marital incidents, past blame, or other personal attacks. This type of communication shall be deemed as harassment, breaching personal boundaries and in violation of the parties' agreement. . . .

Modified Divorce Decree

¶6 In August 2018, James filed a petition to modify the stipulated divorce decree, asserting substantial changes in circumstances. In relevant part, he claimed that the children's needs had changed; that Joanna, having worked two nearly full-time volunteer positions, was now able to enter the workforce; and that she had failed to abide by certain terms in the stipulated divorce decree. Joanna's new husband, S. Mark Barnes, an attorney, represented her in the ensuing litigation. In opposing the petition, Joanna argued that James had not met his burden of showing a substantial change in circumstances and that he was merely upset with what he now considered "a bad deal."

¶7 Also in 2018, James filed what is now called a motion to enforce. See Utah R. Civ. P. 7B(a), (j); Elder v. Elder, 2024 UT App 68, ¶ 14 n.3, 550 P.3d 488 (explaining that "[u]nder a rule that became effective in May 2021 and that remains in place, a motion for an order to show cause in a domestic relations action is now referred to as a motion to enforce") (quotation simplified). In the motion, James claimed that Joanna failed to abide by the stipulated divorce decree's non-disparagement provision by consistently posting negative comments about him on social media. In his supporting declaration, James asserted that because of Joanna's posts, he had been threatened online by complete strangers. Joanna responded that the non-disparagement provision did not specifically prohibit the parties from posting about each other on social media. She also contended that her posts were not intended to be disparaging and that she was "simply sharing her experiences and supporting those who have suffered through difficult marriages and divorces." The trial court ruled that Joanna's social media posts were "publicly made" and that due to the non-disparagement provision's broad language, "it is proper to interpret social media postings as postings made to third parties" in violation of the non-disparagement provision. Nevertheless, because Joanna had not made any further posts at that time, the court did not hold her in contempt, but it directed her to take down all the social media posts that James referenced in his filings.^[4]

¶8 In August 2019, based on the stipulation of the parties, the trial court entered an order appointing a special master. The order also directed that the parties each pay half of the special master's retainer fee and that the special master "may suspend services based upon the failures of either party to maintain their financial obligations." In November 2019, the special master withdrew. James subsequently filed another motion to enforce, asking the court to find, among other things, that Joanna failed to comply with the court's order to pay her half of the special master fee and seeking appointment of another special master. Joanna responded that she timely paid all amounts the special master requested and that the special master never communicated to her that she had an outstanding balance.^[5]

¶9 In April 2020, EPW began living with James full-time following two incidents in which Joanna called the police on EPW. After the second incident, Joanna told EPW that he could not live with her. After EPW moved in with James, Joanna texted and called "hundreds" of times and contacted police several times to conduct welfare checks on EPW even though she had no reason to believe he was not safe with James. James then obtained a temporary stalking injunction against Joanna, which prevented her from contacting EPW and awarded him temporary custody of all the children. But the temporary injunction was later dismissed after a hearing. And following the bench trial in the matter currently before us, the trial court found that regardless of whether James was justified in obtaining the temporary injunction to give EPW "some time to process and heal," James had "no good faith reason" to list the other three children as "protected parties" under the injunction.

¶10 In May 2020, James filed an amended petition to modify the stipulated divorce decree, now seeking sole custody of EPW, joint physical custody of the remaining three children, and requesting that he be granted "the tie-breaking vote for legal custody decisions." Joanna filed a counter-petition to modify seeking, in relevant part, sole legal and physical custody of all the children, with James having parent-time, and requesting that child support be recalculated based on the parties' current gross monthly incomes. Due to the contentious nature of the litigation, a private guardian ad litem (the PGAL) was appointed to represent the children's best interest.

¶11 In late 2021 and early 2022, the trial court held a four-day bench trial on the competing motions to modify. In April 2022, the court issued findings of fact and conclusions of law, and it entered a modified divorce decree the following month.

¶12 The court indicated that this case was "one of the most difficult cases [it] has ever had." It noted that the parties "appear to be clinging to their anger and resentment towards each other, which is clouding their judgment and interfering with their ability to put the needs of the Children above their own," resulting in the children "experiencing stress, anxiety, and depression." The court then entered extensive findings regarding certain incidents (including those that led to EPW living full-time with James and the subsequent application for a temporary stalking injunction), as well as the parties' lack of insight concerning their own roles in conflicts, their refusal to give each other the benefit of the doubt, their refusal to cooperate with each other, their inability to communicate appropriately, their disparagement of each other, and their involvement of the children in their disputes. In addressing disparagement, the court found, in relevant part, that Joanna made social media posts alleging that James "abus[ed] her and attempt[ed] to 'infiltrate progressive and feminist spaces'" and that he refused to help EPW, who she claimed was "in danger" and "not safe."^[6] The court also found that Joanna had continued to post about James on social media even after the prior order to take down her earlier posts, which order was entered in response to James's 2018 motion to enforce.

¶13 Due to the immense conflict that had arisen from the initial custody arrangement, which conflict had negatively impacted the children, the court concluded that substantial material changes in circumstances warranted a change in physical and legal custody of the three children who remained...