Thomas v. Thomas , 2021 UT App 8 ( 2021 )

2021 UT App 8THE UTAH COURT OF APPEALS
JEREMY THOMAS,
Appellant,
v.
JODY TASKER THOMAS,
Appellee.
Opinion
No. 20190242-CA
Filed January 22,2021
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 114600077
Rosemond G. Blakelock and Megan P. Blakelock,
Attorneys for Appellant
Todd F. Anderson, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jeremy Thomas appeals the district court’s order
following a January 10, 2019 hearing, in which it held him in
contempt and imposed various sanctions. We affirm but remand
for a calculation of fees and costs on appeal.
BACKGROUND
¶2 Jeremy and Jody Tasker Thomas were divorced in 2013.
The parties have two children: Son and Daughter. The divorce
decree provided that during the school year, Jeremy would have
primary custody of Son and Jody would have primary custody
of Daughter. The parties were to share joint physical custody of
the children during the summer. Since their divorce, the parties
Thomas v. Thomas
have had numerous conflicts regarding the children, which
ultimately led the parties to stipulate to appointment of a special
master to help them resolve their parenting disputes. With
respect to establishing an order governing the special master’s
authority (Order Appointing Special Master), the parties
stipulated to use the “standard Special Master Order as used by
Jay Jensen or Sandra Dredge.” 1
¶3 The special master issued numerous orders in the years
following his appointment. For example, he issued orders
governing the children’s communication and cell phone use
during parent-time and requiring both the parents and children
to participate in therapy. He also issued orders outlining
procedures for exchanges for parent-time that were intended to
minimize conflict and prevent the children from defying the
parent-time schedule.
¶4 Four years after the decree was entered, Jody filed a
motion for order to show cause in which she alleged that Jeremy
had violated various provisions of the parties’ divorce decree
and the special master’s orders. These allegations revolved
around one primary issue: that Jody believed Jeremy was
alienating the children from her by speaking “derogatorily or
disparagingly” about Jody, “[p]utting the children in the
middle,” “discussing adult issues with the children,” and
denying her parent-time.
¶5 The district court held a hearing on Jody’s motion for
order to show cause, as well as various other pending motions,
in November 2017. With respect to Jody’s motion, the court
1. Although details about Jay Jensen and Sandra Dredge are not
found in the record, we take judicial notice, purely for the
purpose of providing background information, that the former is
a therapist and the latter an attorney. Both have practices in Utah
County and have served as special masters in several domestic
cases there.
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found that Jeremy was “using the teenager[s’] busy schedules as
a way to triangulate animosity and contempt of the children
against their mother,” that his actions made Jody out to be the
“bad guy,” and that he had “shown a continued pattern towards
alienating the love and affection of the children towards” Jody.
The court also found that Jeremy had not complied with an
order of the special master that he “engage in individual
therapy.”
¶6 Based on these findings, the court concluded that Jeremy
had violated provisions of the divorce decree as well as
“multiple orders of the Special Master,” that Jeremy knew of the
orders, that he had the ability to comply, and that he willfully
refused to do so. As a result, the court found him in contempt
and ordered sanctions of thirty days incarceration in county jail,
suspension of any licenses issued by the state, and a $1,000 fine
(the First Contempt Order). However, the court stayed the
sanctions and gave Jeremy an opportunity to purge the
contempt by doing four things: (1) “fully comply[ing] with the
Special Master order(s) regarding counseling”; (2) “mak[ing]
progress regarding his alienation of the children”; (3)
“provid[ing] necessary releases for [his therapist] to provide
regular reports to the Special Master and [Jody] regarding
[Jeremy’s] progress”; and (4) paying Jody’s attorney fees and
costs relating to several motions. The court then set the matter
for further review. At the subsequent hearing, the court did not
consider whether Jeremy had purged his contempt, but it
ordered Jeremy:
1. To strictly comply with the Custody order.
2. To make no alterations or changes to the custody
order without the prior agreement of [Jody].
3. To compel the children to comply with the
custody order, and to do so without any further
alienation of the children.
20190242-CA 3 2021 UT App 8Thomas v. Thomas
4. To not schedule or allow to be scheduled any
activity with the children in conflict with the
custody order.
5. To not allow [Son’s] sports and motocross to
interfere with [Jody’s] visitation without [Jody’s]
agreement to a trade.
6. To compel [Son] to comply with the custody
order.
7. To not allow the children to refuse to comply
with the custody order.
¶7 As the year progressed, tensions between the parties
continued. Several contentious issues arose relating to exchanges
of the children, in which Jeremy “fail[ed] to ensure the children
attend parent-time.” Although Jeremy would take the children
to the exchange location, the children would refuse to go with
Jody, and Jeremy would then allow them to go home with him.
Additionally, when conflicts arose between Son’s extracurricular
activities and his parent-time with Jody, Jeremy left it to Son to
coordinate scheduling changes and make-up time with Jody,
putting the full responsibility of disappointing Son on Jody if
changes to the schedule could not be arranged.
¶8 Then, at some point in the summer of 2018, Daughter
hatched a plan that would allow her to move in with Jeremy
during the school year. She informed Jeremy that Jody had given
her permission to register for school in Jeremy’s district. Without
verifying this information with Jody, Jeremy went to the school
and pre-registered Daughter to attend school where he lived.
When it became apparent that Jody had not given permission for
Daughter to change schools, Daughter “refused to go to school
for a considerable time” in the hope that “if [she] didn’t go to
school, they’d let [her] go to [her] dad’s.” Additionally, Daughter
made attempts to harm Jody, which culminated in Daughter
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being placed in juvenile detention and referred to the Utah
Juvenile Court system.
¶9 Jody filed another motion for order to show cause in
December 2018, in which she alleged that Jeremy had failed to
purge his contempt and that he should additionally be held in
contempt for failing to obey a subpoena and for violating
numerous orders of the court and special master. The district
court held an evidentiary hearing on the motion on January 10,
2019, and again found Jeremy in contempt (the Second
Contempt Order). In light of the voluminous evidence relating to
Jeremy’s alienation of the children submitted to the court at that
hearing and throughout the pendency of the case, the court
made findings regarding anecdotal incidents that it believed
were representative of the alienating behavior.
¶10 First, the court recited text messages from an incident in
February 2018 in which Daughter refused to return to Jody’s
home after parent-time with Jeremy and Jeremy supported her
refusal. It then addressed an incident in July 2018 in which
Jeremy “knew the children did not want to do” parent-time with
Jody and “failed to do anything to encourage or ensure the
children comply with [Jody’s] parent-time as required by the
orders of the Court.” The court found that this conflict was “only
one example of many where [Jeremy] failed to encourage and/or
compel the children’s compliance with” Jody’s parent-time.
¶11 The court also made several findings regarding the school
incident. The court found that either (1) Jeremy was lying to the
court when he claimed Daughter told him Jody gave permission
for her to “look at enrolling and attending school” in Jeremy’s
district or (2) Daughter lied to Jeremy and Jeremy made no
attempt to communicate with Jody to verify Daughter’s
“unbelievable statement that she had [Jody’s] permission.” The
court found that “as a result of [Jeremy’s] failure to act, [he]
implanted the idea into [Daughter’s] mind that [he] was going to
aid [her] in her plot to” live with Jeremy: “[T]he best-case
scenario is that [Jeremy] was complicit with [Daughter’s] lies
and plans. The worst-case scenario is that [Jeremy] helped
20190242-CA 5 2021 UT App 8Thomas v. Thomas
[Daughter] orchestrate her plot and is lying to the Court.” The
court found that Jeremy’s “willingness to allow [Daughter’s]
defiance” was a “significant contributor” to her “pushing the
envelope of her defiance” by “refusing to attend school for many
weeks” and attempting to harm Jody.
¶12 Moreover, the court adopted as part of its order findings
of fact submitted by the special master on December 18, 2018,
and January 4, 2019. The special master found that although
“there was an added measure of compliance” by Jeremy
following the First Contempt Order, noncompliance escalated
during the late summer and early fall of 2018 and Jeremy had
“failed to demonstrate strict and consistent compliance with the
custody order.” The special master’s findings went on to detail
various incidents of parent-time conflicts and noncompliance by
Jeremy, as well as how Jeremy’s failure to respond to the special
master and comply with his orders had impeded the special
master’s investigation of various incidents and allegations.
¶13 The special master also found that although Jeremy had
attended ten sessions with his therapist following the First
Contempt Order, he had not met with the therapist for the nine
months prior to the January 2019 hearing. However, apart from
observing that the therapist appeared not to have a full
understanding of the situation, the court did not make
additional findings regarding Father’s compliance with orders
that he attend therapy.
¶14 The court determined that “the alienation of the children
. . . is the most critical issue that the Court has taken into
consideration.” It therefore found Jeremy “in continued
contempt as [he] has failed to purge his contempt previously
found, and also continued to violate the same orders,” including
provisions of the divorce decree regarding alienation and
putting the children in the middle, as well as “multiple orders of
the Special Master.”
¶15 As a result of its contempt findings, the court ordered the
following sanctions: (1) that Jeremy pay all Jody’s attorney fees
20190242-CA 6 2021 UT App 8Thomas v. Thomas
and costs “incurred in relation to this case and her difficulty in
co-parenting since February 3, 2018”; (2) that Jeremy pay all the
special master “fees and costs incurred since November 14,
2017”; (3) that Jeremy pay for “all uninsured costs of counseling
for the parties’ minor children” as well as for individual
treatment for Jody and Jeremy with the family counselor; (4) that
all parent-time and communication between Jeremy and
Daughter be supervised until the special master makes findings
that the alienation issues have been sufficiently addressed; (5)
that custody of Son be changed from Jeremy to Jody and all
parent-time and communication between Jeremy and Son be
supervised; and (6) that the stay on two days of the thirty-day
jail sentence imposed in the previous contempt order be lifted
and that Jeremy serve those two days in the Juab County Jail.
However, the court stayed the sanction changing custody and
instituting supervised parent-time of Son conditioned on Son
strictly complying with court-ordered parent-time and Jeremy
showing “a good faith effort to ensure that the minor children
are repairing their relationships with [Jody].”
¶16 Custody of Son never actually changed, and the parties
reached a stipulation in July 2019 in which they agreed that
“[c]ustody of [Son] shall remain [with Jeremy] based on the
recommendation of the Special Master, who believes that
[Jeremy] has (as of the date of the signing of this Stipulation)
been in sufficient compliance with” the conditions imposed by
the court in the Second Contempt Order. Son turned eighteen in
August 2020.
¶17 Jeremy now challenges the Second Contempt Order on
appeal.
ISSUES AND STANDARDS OF REVIEW
¶18 First, Jeremy claims that the district court violated rule 53
of the Utah Rules of Civil Procedure by treating the special
master’s orders as orders of the court, the violation of which
could justify a contempt finding. “The proper interpretation of a
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rule of procedure is a question of law, and we review the trial
court’s decision for correctness.” American Interstate Mortgage
Corp. v. Edwards, 2002 UT App 16, ¶ 10, 41 P.3d 1142 (quotation
simplified).
¶19 Second, Jeremy raises several issues relating to the district
court’s contempt findings and sanctions: (1) that the court
exceeded its discretion in concluding that he had not purged his
prior contempt found in the First Contempt Order, (2) that the
court exceeded its discretion in finding him in further contempt
of the court’s orders, (3) that the court lacked authority to change
the custody of Son as a sanction for his contempt when no
petition to modify was pending in the case, and (4) that other
sanctions were inappropriate. “An order relating to contempt of
court is a matter that rests within the sound discretion of the trial
court.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539.
Moreover, “we overturn a sanction only in cases evidencing a
clear abuse of discretion.” Chaparro v. Torero, 2018 UT App 181,
¶ 20, 436 P.3d 339 (quotation simplified). “An abuse of discretion
may be demonstrated by showing that the district court relied on
an erroneous conclusion of law or that there was no evidentiary
basis for the trial court’s ruling.” Id. (quotation simplified).
ANALYSIS
I. Special Master Orders
¶20 Rule 53 of the Utah Rules of Civil Procedure states that
“[a]ny or all of the issues in an action may be referred by the
court to a master upon the written consent of the parties.” Utah
R. Civ. P. 53(a). Regarding the powers of a special master, the
rule states that “[t]he order of reference to the master may
specify or limit [the master’s] powers.” Id. R. 53(c).
¶21 A special master was appointed in this case based on the
parties’ stipulation, in which they agreed to give the master
authority in accordance with “[t]he standard Special Master
Order as used by Jay Jensen or Sandra Dredge.” The Order
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Appointing Special Master grants the special master authority to
issue “directives” regarding numerous specified issues such as
scheduling, communication, and therapy and specifies that these
directives “are effective as orders when made and . . . continue in
effect unless modified or set aside by a court of competent
jurisdiction.” The Order Appointing Special Master also grants
the special master the authority to issue “recommendations” on
other specified issues, such as significant changes to parent-time
or conflicts on fundamental parenting decisions relating to
healthcare, religion, and education. It states that
recommendations—unlike directives—do not become court
orders unless and until the district court adopts them.
¶22 Jeremy first asserts that the district court erred in
determining that “all the Special Master ‘Orders’ issued” as of
the January 10, 2019 hearing “are ‘directives’” under the Order
Appointing Special Master, because the court did not “examin[e]
the subject matter contained in each pleading the Special Master
filed.” However, Jeremy provides no support for his assertion
that the district court did not examine the subject matter of the
individual special master orders. Further, he makes no attempt
to point us to orders that should have been considered
recommendations rather than directives. Thus, he has not
adequately briefed his claim that the district court erred in
classifying all the prior special master orders as directives. See
State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well
established that a reviewing court will not address arguments
that are not adequately briefed.”).
¶23 Jeremy further asserts that even if the special master
orders were directives, they could not have become effective
until the district court acknowledged them as such in its Second
Contempt Order. But this position is contrary to the plain
language of the Order Appointing Special Master, which states
that directives “are effective as orders when made and
. . . continue in effect unless modified or set aside by a court of
competent jurisdiction.” The court’s acknowledgment that the
special master orders were directives is not the event that made
20190242-CA 9 2021 UT App 8Thomas v. Thomas
them effective. They were effective and binding at the time the
special master issued them, in accordance with the Order
Appointing Special Master.
¶24 To the extent that Jeremy challenges the special master’s
authority to make binding directives under rule 53, such a
challenge was previously foreclosed by this court in Wight v.
Wight, 2011 UT App 424, 268 P.3d 861, in which we rejected a
similar argument challenging a district court’s ability to grant a
special master limited power under rule 53 to make binding
decisions on specific issues. Id. ¶ 16. While rule 53 does not
directly give the special master authority to make binding
directives, it gives the court the ability to “specify or limit” the
special master’s powers in the Order Appointing Special Master.
See Utah R. Civ. P. 53(c). The parties in this case stipulated to the
appointment of the special master and to the Order Appointing
Special Master that would be used. The grant of limited
decision-making power in an Order Appointing Special Master
is permitted under the “considerable discretion” rule 53 grants
district courts in using a special master. See Wight, 2011 UT App
424, ¶ 16. Thus, the court’s acknowledgment of the binding
nature of the special master’s directives in this case is not
contrary to rule 53. As in Wight, “nothing in the [Order
Appointing Special Master] limited either party’s ability to
challenge the decisions of the special master by filing objections
with the trial court.” Id. But unless and until such an objection
was made and ruled on, the special master’s directives were
“effective as orders” under the Order Appointing Special
Master.
¶25 And while Jeremy asserts that his due process rights were
violated when the court treated the directives as orders of the
court and held him in contempt for violating them, he has failed
to explain why. “At its core, the due process guarantee is
twofold—reasonable notice and an opportunity to be heard.” In
re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215. Jeremy does
not assert that he lacked notice of the orders of the special
master. Moreover, given that the orders were directives—a
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finding that Jeremy has failed to adequately challenge, see supra
¶ 22—and that the Order Appointing Special Master clearly
informed Jeremy that directives are binding when issued, he
should have known that he was required to comply with them.
Further, the Order Appointing Special Master gave Jeremy an
opportunity to present any grievances regarding the special
master’s orders to the court by means of an objection. He does
not assert that he was somehow precluded from objecting to the
special master’s orders in the manner prescribed by the Order
Appointing Special Master. Therefore, we find no merit in
Jeremy’s claim that the district court violated his due process
rights in holding him accountable for failing to comply with the
special master’s orders. 2
II. Contempt Finding and Sanctions
¶26 Next, Jeremy raises several challenges to the district
court’s contempt findings and sanctions. We address each in
turn.
A. Failure to Purge Contempt
¶27 Jeremy first asserts that the court exceeded its discretion
in finding that he had not purged his prior contempt, claiming
that its findings were not supported by the evidence. To purge
his contempt, Jeremy was required to do the following four
things: (1) “fully comply with the Special Master order(s)
regarding counseling”; (2) “make progress regarding his
alienation of the children”; (3) “provide necessary releases for
2. Even if we were persuaded that the court somehow erred in
holding Jeremy in contempt based on the orders of the special
master, it is unclear how that would alter the outcome of this
case. The court’s contempt finding was not based solely on
violations of the special master’s orders but rested in large part
on his violation of those provisions of the divorce decree
prohibiting alienation.
20190242-CA 11 2021 UT App 8Thomas v. Thomas
[his therapist] to provide regular reports to the Special Master
and [Jody] regarding [Jeremy’s] progress”; and (4) pay Jody
specific attorney fees and costs.
¶28 Jeremy asserts that the district court did not make
appropriate findings regarding whether he had purged his
contempt. As to the first, third, and fourth requirements
imposed by the court, we agree that the district court did not
clearly address Jeremy’s compliance. 3 However, that fact does
not undermine the court’s determination that Jeremy had not
purged his contempt. To purge the contempt, Jeremy was
required to comply with all four of the requirements. Thus, his
failure on even one of the requirements would support a
determination that he had not purged his contempt.
¶29 The court made extensive findings regarding Jeremy’s
failure to comply with the second requirement—that he make
progress on his alienation of the children. Indeed, the court
observed that “alienation of the children . . . is the most critical
issue that the Court has taken into consideration” in concluding
that Jeremy had “failed to purge his contempt.” The court’s
findings regarding alienation were extensive and included
detailed recitals of the events relating to contentious exchanges
in February and July 2018, as well as the events relating to
Jeremy’s support of Daughter’s scheme to change schools.
Further, the court adopted the special master’s findings, which
recited additional instances of parent-time interference and
found that Jeremy had “not made consistent progress with the
issues of alienation” and, despite “greater compliance and
progress” initially following the First Contempt Order, had
3. The adopted findings of the special master did suggest that
Jeremy had not “fully compl[ied] with the Special Master
order(s) regarding counseling,” as he had not met with therapist
for the nine months prior to the January 2019 hearing. However,
the district court did not analyze Jeremy’s compliance with this
mandate.
20190242-CA 12 2021 UT App 8Thomas v. Thomas
“fallen into old patterns, continuing to impact the children’s
relationship with” Jody.
¶30 Jeremy does not assert that the evidence could not
support these findings but instead reargues the evidence, relying
solely on the testimony of his own therapist that Jeremy’s
progress on alienation issues had been “very good.” But the
district court discredited this testimony as unreliable because it
believed that, “whether intentionally or unintentionally,” Jeremy
had given the therapist “a grossly distorted history of this case,”
so the therapist did “not have an understanding of what is
actually going on.” 4 Further, the court made extensive findings
4. Jeremy does not challenge the court’s determination that his
therapist’s testimony was not credible but instead blames the
special master and the district court for any distortion of the
facts because the special master selected and the court appointed
the therapist to function solely as an individual therapist for
Jeremy and not to meet with other members of the family or
evaluate the family as a whole. He asserts that if the therapist
had been required to consult with others, the therapist would
have had a fuller picture of the situation and that the lack of such
consultation precluded Jeremy from complying with the court’s
mandate that he make progress on his alienation issues. But even
accepting Jeremy’s premise, these facts suggest only that the
therapist’s lack of information from other sources might have
limited his utility as a witness to Jeremy’s progress, not that
Jeremy was precluded from making progress on his alienation
issues. It was Jeremy who continued to make poor decisions by
interfering with parent-time, supporting Daughter’s scheme to
change schools, and generally undermining Jody. And it was
Jeremy who, in meeting with the therapist, left out crucial
information that could have helped the therapist better
understand and help him with the alienation issues. The fact that
Jeremy failed to make progress in spite of therapy does not come
down to whether the special master or court ordered the
therapist to meet with other individuals in the family.
(continued…)
20190242-CA 13 2021 UT App 8Thomas v. Thomas
concerning events that demonstrated Jeremy had not made
progress on alienation issues. The underlying evidence supports
these findings, and in turn, the findings support the district
court’s determination that Jeremy had failed to purge his
contempt.
B. Additional Contempt
¶31 Jeremy also asserts that he should not have been held in
further contempt, but his arguments in support of this assertion
lack merit.
¶32 To find someone in contempt, a court must find “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). Here, the
court found all three of these elements. Jeremy does not directly
challenge the court’s findings on these elements 5 but raises
related issues that he claims precluded the court from finding
him in contempt.
¶33 First, he takes issue with a statement the court made in its
findings about a conflict between the parties over a trip to
England that had occurred prior to the First Contempt Order.
The court’s findings regarding alienation in the Second
Contempt Order stated that it had “identified, with specificity,
(…continued)
Ultimately, it was Jeremy’s responsibility to comply with the
court’s order that he make progress on his alienation issues, and
he failed to do so.
5. Jeremy does attempt to challenge the court’s findings
regarding the school incident, but he does so in the context of
challenging the sanctions rather than in the context of
challenging the contempt finding. In any event, we reject those
arguments as discussed infra ¶ 44.
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three circumstances that are not the only examples, but typify
the behavior [Jeremy] has engaged in that encourages alienation
between the minor children and [Jody].” The court then follows
this introduction with the statement, “First, during the course of
the evidentiary hearing, in the Court’s questioning of [Jeremy],
the Court brought up the previous canceled trip to England and
the findings the Court made regarding that event.” Jeremy
asserts that it was inappropriate for the court to rely on incidents
relating to the England trip to find him in further contempt
because those events occurred before the First Contempt Order.
¶34 Admittedly, the inclusion of this statement here is
somewhat confusing. Subparagraphs underneath this statement
in the court’s order proceed to recite the details of the February
2018 parent-time incident and do not again refer to the England
trip. In fact, the court does not mention or discuss the England
trip beyond the above-quoted language. Moreover, the court
goes on to discuss three distinct incidents, apart from the
England trip, as examples of Jeremy’s alienating behavior—the
February 2018 incident, the July 2018 incident, and the incident
involving Daughter’s schooling.
¶35 Given the complete lack of any further discussion of the
England trip and the fact that the court indicated its intent to
discuss “three circumstances” that typified Jeremy’s behavior,
we are inclined to believe that the statement about the England
trip was misplaced and that it was the other three incidents,
discussed in more detail, that formed the basis of the court’s
contempt finding. The court made no findings or conclusions
relating to the England trip but merely mentioned that it had
questioned Jeremy about it. And the other three incidents, in
addition to the other incidents identified in the special master’s
findings, which the court adopted as part of the Second
Contempt Order, provided ample support for the district court’s
contempt finding. Thus, there is no indication in the Second
Contempt Order that the court actually placed any weight on the
England trip incident when finding Jeremy in further contempt.
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¶36 Second, Jeremy asserts that the court’s findings
improperly relied on certain affidavit evidence provided by Jody
that he claims was not appropriately admitted. However, any
error by the court in considering that evidence was invited when
Jeremy indicated that he had no objection to the court
considering affidavits “in lieu of direct testimony, so long as the
party is then available for cross examination.” See Pratt v. Nelson,
2007 UT 41, ¶ 17, 164 P.3d 366 (“A party cannot take advantage
of an error committed at trial when that party led the trial court
into committing the error.” (quotation simplified)). Furthermore,
at the evidentiary hearing, Jody reaffirmed the statements in her
affidavit, and Jeremy took the opportunity to cross-examine her
about them.
¶37 In short, we see no merit to any of Jeremy’s arguments
challenging the basis for the court’s new findings of contempt.
Indeed, the evidence of Jeremy’s alienating behavior was
substantial, and the court’s findings were thorough. We do not
hesitate to uphold the court’s additional contempt findings in
the Second Contempt Order.
C. Change of Custody
¶38 Jeremy next argues that the district court exceeded its
discretion by awarding a change of custody of Son as a sanction
for his contempt, particularly where no petition to modify was
pending. However, this particular sanction was stayed, and the
stay was never lifted. Instead, the court entered a new order,
pursuant to the parties’ stipulation, in July 2019. This order
declared that “[c]ustody of [Son] shall remain [with Jeremy]
based on the recommendation of the Special Master, who
believes that [Jeremy] has (as of the date of the signing of this
Stipulation) been in sufficient compliance with” the conditions
imposed by the court in the Second Contempt Order. The order
went on to indicate that the parties’ stipulation “resolves any
and all issues related to . . . custody of [Son].” Moreover, Son
turned eighteen in August 2020 and is therefore no longer
subject to the jurisdiction of the court. See generally Utah Code
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Ann. § 15-2-1 (LexisNexis 2013) (“The period of minority extends
. . . to the age of 18 years . . . .”); id. § 30-3-1(5)(d) (2019) (granting
district courts jurisdiction over “the custody and maintenance of
minor children” in a divorce).
¶39 Because the change-of-custody sanction was never
implemented and Son is no longer subject to the jurisdiction of
the court, we agree with Jody that this issue is moot. See State v.
Steed, 2015 UT 76, ¶ 6, 357 P.3d 547 (“An argument is moot if the
requested judicial relief cannot affect the rights of the litigants. In
other words, an appeal is moot if the controversy is eliminated
such that it renders the relief requested impossible or of no legal
effect.” (quotation simplified)).
¶40 Jeremy nevertheless asks us to review this issue “because
it is of wide concern, affects the public interest, is likely to recur,
and yet evades review.” See Osguthorpe v. Osguthorpe, 872 P.2d
1057, 1058 (Utah Ct. App. 1994). But this does not appear to us to
be an accurate statement. Indeed, our court has previously
addressed this very issue. See Chaparro v. Torero, 2018 UT App
181, ¶ 40, 436 P.3d 339 (“A district court cannot avoid making
[best interests] findings by modifying custody arrangements as a
sanction.”); see also Blanco v. Blanco, 311 P.3d 1170, 1175 (Nev.
2013) (en banc) (“A court may not use a change of custody as a
sword to punish parental misconduct, such as refusal to obey
lawful court orders, because the child’s best interest is
paramount in such custody decisions.” (quotation simplified)),
quoted in Chaparro, 2018 UT App 181, ¶ 40. Thus, the issue is
clearly not one that evades review, and it is one on which we
have already provided guidance. Accordingly, we decline to
consider this moot issue.
D. Other Sanctions
¶41 Finally, Jeremy asserts that “all sanctions, including
attorneys fees, supervised parent-time, and the change of
custody should be reversed.” However, we reject his arguments
on this point because they are inadequately briefed. State v.
Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that
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a reviewing court will not address arguments that are not
adequately briefed.”).
¶42 First, he asserts that attorney fees for “things such as
charges on December 17, 2018 regarding mediation discussions
with a mediator and charges on July 11, 2018 regarding a
separate case involving a Lis Pendens” were unrelated to the
order to show cause and therefore should not have been
included in the sanctions. This is the extent of his argument. He
makes no attempt to explain specifically why these charges were
unrelated to the show cause motion or even to identify all the
charges he is contesting. Jeremy’s limited analysis is inadequate
to challenge the propriety of the attorney fees sanction, and we
therefore decline to address his argument.
¶43 Apart from Jeremy’s minimal discussion regarding the
propriety of the attorney fees, he does not challenge the
appropriateness of the sanctions. Instead, his argument alleges
that the court “failed to make the required findings with respect
to contempt.” See generally Marsh v. Marsh, 1999 UT App 14, ¶ 10,
973 P.2d 988 (explaining that a court cannot hold someone in
contempt unless it finds “from clear and convincing proof that
the contemnor knew what was required, had the ability to
comply, and willfully and knowingly failed and refused to do
so” (quotation simplified)). But this argument, too, is inadequate.
Jeremy makes two points: (1) that he could not have “willfully
refused to allow [Daughter] to attend school” because he did not
have custody of her and (2) that Jody “failed to submit any
evidence of [his] contempt.”
¶44 The first argument is irrelevant because the school issue
was not that Jeremy did not allow Daughter to attend but that
he, at best, “was complicit with [Daughter’s] lies and plans” and,
at worst, “helped [Daughter] orchestrate her plot” not to attend
school and that his actions exemplified “the behavior [he] has
engaged in that encourages alienation between the minor
children and” Jody. Moreover, other instances of alienation
supported the court’s decision to hold Jeremy in contempt for
violating provisions of the divorce decree pertaining to
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alienation, so even if we agreed with him that the school incident
could not support the contempt finding, his failure to specifically
challenge the other findings supporting the contempt would
preclude us from reversing the court’s decision. Cf. Gilbert v.
Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247 (“[We] will not
reverse a ruling of the district court that rests on independent
alternative grounds where the appellant challenges only one of
those grounds.”). As to his second argument, we have already
addressed and rejected it. See supra ¶ 36. Thus, we reject Jeremy’s
challenge to the court’s contempt sanctions.
III. Attorney Fees
¶45 Jody requests her attorney fees and costs on appeal on the
ground that she was awarded fees below. “The general rule is
that when a party who received attorney fees below prevails on
appeal, the party is also entitled to fees reasonably incurred on
appeal.” Robertson’s Marine, Inc. v. I4 Solutions, Inc., 2010 UT App
9, ¶ 8, 223 P.3d 1141 (quotation simplified). Although there are
exceptions to this general rule, see, e.g., Liston v. Liston, 2011 UT
App 433, ¶ 27 n.6, 269 P.3d 169, Jeremy has not argued that any
exception applies here. Thus, because Jody has prevailed on
appeal, we grant her request for fees and costs on appeal and
remand for the district court to calculate the award.
CONCLUSION
¶46 Neither the Order Appointing Special Master nor the
court’s interpretation and application of that order violated rule
53 of the Utah Rules of Civil Procedure. Further, Jeremy has not
adequately alleged any error or abuse of discretion in the court’s
determination that he had failed to purge his prior contempt and
that he had engaged in additional contemptuous acts. Jeremy’s
challenge to the change-of-custody sanction is moot, and his
challenges to the other sanctions are inadequately briefed.
Because Jody has prevailed on appeal and was awarded fees
below, she is also entitled to fees on appeal. Accordingly, we
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affirm the Second Contempt Order but remand for the district
court to calculate an award of fees and costs to Jody on appeal.
20190242-CA 20 2021 UT App 8