Wolferts v. Wolferts

315 P.3d 448

744 Utah Adv. Rep. 25

Brian WOLFERTS, Petitioner and Appellee,

v.Sonja Michelle WOLFERTS, Respondent and Appellant.

No. 20110646–CA.

Court of Appeals of Utah.

Oct. 3, 2013.

Steve S. Christensen, Craig L. Pankratz, Samuel J. Sorensen, and Matthew Hilton, Salt Lake City, for Appellant.

Ronald D. Wilkinson, Provo, and Nathan S. Shill, Orem, for Appellee.

Martha Pierce, Salt Lake City, Guardian ad Litem.

Judge WILLIAM A. THORNE JR.¹ authorized this Opinion, in which Judges JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.

THORNE, Judge:

¶ 1 Appellant Sonja Michelle Wolferts (Mother) appeals from three of the district court's orders: the May 5, 2010 order enforcing contempt provisions; the Findings of Fact, Conclusions of Law, and Order of Modification modifying child custody; and the Ruling and Order on Petitioner's Request for Fees and Costs awarding attorney fees and costs to Appellee Brian Wolferts (Father). We affirm.

BACKGROUND

¶ 2 In 2004, Father filed for divorce. In 2007, the parties stipulated that Mother would have primary custody of the parties' three minor daughters (the Children) and Father would receive parent-time. The district court entered an amended decree based on the parties' stipulation on December 5, 2007.

¶ 3 On March 27, 2008, Mother filed a petition to modify seeking to restrict Father's parent-time and require that his parent-time be supervised. Father answered Mother's petition, requested the court dismiss her petition, and filed a counter-petition wherein he requested sole legal and physical custody of the Children. On April 17, 2009, the Guardian ad Litem (GAL) filed a verified motion seeking an order to show cause for contempt against both Mother and Father. The GAL alleged that both parties had failed to engage in required individual therapy until released by the therapist. The GAL also alleged that Mother failed to make payments to the court-appointed special master, to initiate a custody evaluation and a psychological evaluation with “specific testing” as ordered, to release medical records for the Children, and to ensure that the Children were receiving filial therapy. In August 2009, the commissioner held a hearing on the GAL's order to show cause motion. At that hearing, the GAL withdrew his order to show cause motion as to Father but proceeded against Mother. The commissioner recommended that the district court grant the GAL's motion and sanction Mother by striking her pleadings and entering a default against her. The commissioner then stayed the sanctions until October 6, 2009, to give Mother an opportunity to purge her contempt, and set a hearing date. Mother did not object to the commissioner's recommendation, and the district court signed the order.

¶ 4 At the October 6 hearing, the commissioner determined that Mother had failed to purge her contempt and recommended the sanction stay be lifted. Mother objected to the determination that she had failed to purge her contempt and requested an evidentiary hearing. The district court held such a hearing, and Mother testified regarding her compliance. The district court found that the commissioner's order required Mother to submit an affidavit from the special master to demonstrate that Mother was in full compliance with the order. The special master's affidavit stated that Mother was in partial compliance. The court further found that Mother's testimony was consistent with the special master's statement that Mother was only in partial compliance. The district court denied Mother's objection to the commissioner's determination that Mother had not complied with the order.

¶ 5 Following the entry of Mother's default, the district court then proceeded to hold a best interests hearing on whether a transfer of custody to Father was in the best interests of the Children. At the hearing, Father's attorney and the GAL both argued that because Mother was found in default she had given up her right to fully participate in the best interests hearing and should only be permitted to cross-examine witnesses. Mother's attorney conceded that Mother's ability to participate in the hearing was limited because of her default but argued that Mother should still be able to testify on her own behalf and call a few lay witnesses. Mother's attorney also conceded that the court would have enough information about the case from the professionals that Father intended to call to testify to determine the best interests of the Children. The court determined that the lay witnesses that Mother intended to call did not add much to what the court was to consider, especially given the professionals that Father intended to call to testify. The court further noted generally that once defaulted a party's ability to participate is limited, and the court then determined that because Mother was found in contempt her participation would be limited. The court did allow Mother to participate in cross-examination of the witnesses but declined to allow her to call additional witnesses.

¶ 6 After considering the evidence and legal arguments, the district court found that the expert witnesses who all testified that Mother was not cooperative were credible ² and, conversely, that Mother was not credible.³ The court also found, among other things, that Mother inappropriately coached the Children, interfered with parent-time and the Children's relationship with Father, and did not appreciate that her behavior was harmful to the Children. Thereafter, the district court transferred custody of the Children to Father. Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Mother argues that the district court erred when it punished her for contempt of court without conducting an evidentiary hearing. Because Mother did not preserve this issue for appeal, she seeks review under the plain error standard. See State v. Weaver, 2005 UT 49, ¶ 18, 122 P.3d 566 (identifying plain error as an exception to the preservation rule).

¶ 8 Mother next argues that the district court erred by impermissibly striking her pleadings as a sanction for contempt of court. “An order relating to contempt of court is a matter that rests within the sound discretion of the [district] court.” Chen v. Stewart, 2005 UT 68, ¶ 44, 123 P.3d 416 (alteration in original) (citation and internal quotation marks omitted). “We accordingly review the sanctions imposed by the district court for an abuse of that discretion.” Id. ¶ 9 Mother also argues that the court violated her due process rights when it deprived Mother of her constitutional right to testify and present evidence at the hearing to determine the best interests of the Children. “Constitutional issues, including questions regarding due process, are questions of law that we review for correctness.” Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

ANALYSIS

I. Contempt Proceeding

¶ 10 Mother argues that the district court erred when it punished her for contempt of court without conducting an evidentiary hearing. Mother did not preserve this issue and seeks review under the plain error standard. ⁴

¶ 11 To demonstrate plain error, Mother must establish that “(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” State v. Larsen, 2005 UT App 201, ¶ 3, 113 P.3d 998 (internal quotation marks omitted). “If any one of these requirements is not met, plain error is not established.” Id. (citation and internal quotation marks omitted).

¶ 12 Mother asserts that the district court erred when it held her in contempt, based on the commissioner's contempt recommendation, without conducting an evidentiary hearing. In support of this argument, Mother asserts that the commissioner did not allow her to confront any witnesses against her or to offer testimony on her own behalf before finding her in contempt of court.

¶ 13 At the contempt hearing, the commissioner allowed the GAL to present his motion for contempt against Mother. The commissioner also provided Mother, Father, and the special master an opportunity to address the contempt issues against Mother. After hearing the GAL's, Father's, and the special master's arguments in favor of a contempt finding against Mother, Mother was given an opportunity to address the contempt issues against her. Mother's attorney presented her argument in response to the contempt allegations and submitted the matter based on the evidence Father had presented and the argument she had presented. Mother's attorney did not seek to call any witnesses to rebut the statements made by the GAL, Father, or the special master in each of their arguments against Mother. Nor did Mother request the opportunity to testify on her own behalf. Because Mother never sought to call any witnesses or to testify at the contempt hearing, we do not agree with Mother that the commissioner deprived her of her right to confront witnesses or to testify on her own behalf before finding her in contempt. Instead, Mother merely failed to call her own witnesses or to testify herself. Cf. Gardiner v. York, 2010 UT App 108, ¶ 44, 233 P.3d 500 (“[I]n cases of ... criminal contempt procedural due process requires that the defendant have assistance of counsel, if requested, have the right to confront witnesses, and have the right to offer testimony on his behalf.” (emphasis added) (citation and internal quotation marks omitted)).

¶ 14 In addition to this failure, Mother did not object or otherwise inform the district court of any dissatisfaction with the contempt proceeding conducted by the commissioner, i.e., that the commissioner had failed to conduct an evidentiary hearing. “A recommendation of a court commissioner is the order of the court until modified by the court.” Utah R. Civ. P. 108(a). Because Mother did not object to the contempt proceeding procedure, the district court accepted the...