Wolferts v. Wolferts , 315 P.3d 448 ( 2013 )

2013 UT App 235_________________________________________________________
THE UTAH COURT OF APPEALS
BRIAN WOLFERTS,
Petitioner and Appellee,
v.
SONJA MICHELLE WOLFERTS,
Respondent and Appellant.
Opinion
No. 20110646‐CA
Filed October 3, 2013
Fourth District, American Fork Department
The Honorable Christine S. Johnson
No. 074100003
Steve S. Christensen, Craig L. Pankratz, Samuel J.
Sorensen, and Matthew Hilton, Attorneys for
Appellant
Ronald D. Wilkinson and Nathan S. Shill,
Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE WILLIAM A. THORNE JR.1 authored 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
1
Judge William A. Thorne Jr. participated in and voted on
this case as a regular member of the Utah Court of Appeals. He
retired from the court before this decision issued.
Wolferts v. Wolferts
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.
20110646‐CA 2 2013 UT App 235Wolferts v. Wolferts
¶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.
20110646‐CA 3 2013 UT App 235Wolferts v. Wolferts
¶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 credible2 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
2
Specifically, the court found that the special master “was
deliberative and contemplative in all of her answers” and
“firmly believes that her duty is to . . . assist the parents in
working together to resolve the numerous issues.” The court also
found that Dr. Harold Blakelock, the court‐appointed custody
evaluator, “demonstrated a desire to work with both parents and
make a fair assessment regarding the best interests of the
children.” Lastly, it found that Ms. Kaydeen Jensen,
Administrative Director for the Family Academy, “expressed on
the stand a desire to assist both parents” and “credibly testified
that she believed . . . that [Mother had] coached the children.”
3
The court noted that Mother’s testimony demonstrated a
thinly veiled, hostile manner. The court found that “[c]onsistent
with the opinions of the experts in this manner, [Mother’s]
testimony and demeanor demonstrated that she is not
cooperative in other manners.” The court determined that
Mother’s “testimony [was] not credible. [Mother] testified that
she was cooperative, but this is belied by the Court’s experience,
as well as by the testimony of Dr. Blakelock, Ms. Dredge, and
Ms. Jensen who all testified that [Mother] was not cooperative.”
20110646‐CA 4 2013 UT App 235Wolferts v. Wolferts
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
4
Mother has withdrawn her related argument that the
commissioner lacked authority to hold her in contempt.
20110646‐CA 5 2013 UT App 235Wolferts v. Wolferts
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)).
20110646‐CA 6 2013 UT App 235Wolferts v. Wolferts
¶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 commissioner’s recommendation and
countersigned the contempt order. Based on these circumstances,
we cannot conclude that Mother was denied an opportunity to
fully address the contempt allegations against her.
¶15 In the alternative, Mother argues that the court erred
because the conditions she was required to meet in order to purge
her contempt were continually changing. Mother also argues that
because she received the written order four days before the
scheduled hearing, it was impossible for her to comply. Because
Mother did not preserve either issue, she argues plain error.
Mother’s arguments are inadequately briefed. Rule 24(a)(9)
requires that the argument section of a brief “contain the
contentions and reasons of the appellant with respect to the issues
presented, . . . with citations to the authorities, statutes, and parts
of the record relied on.” Utah R. App. P. 24(a)(9); see also State v.
Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (“Implicitly, rule 24(a)(9)
requires not just bald citation to authority but development of that
authority and reasoned analysis based on that authority.” (citation
and internal quotation marks omitted)).
¶16 Mother argues that she did not have sufficient notice of the
requirements to purge her contempt because after she submitted
affidavits that allegedly complied with the commissioner’s August
2009 oral recitation of the requirements to purge contempt, the
GAL submitted a written order on October 2, 2009—four days
before the hearing—which included additional and different
requirements. Although Mother provides a string cite of mostly
out‐of‐state cases in support of her argument that a court cannot
punish a party for failing to comply with an order that provides
insufficient notice, Mother makes no attempt to conduct any
substantial analysis of those cases. More importantly, Mother
20110646‐CA 7 2013 UT App 235Wolferts v. Wolferts
simply does not detail what the additional or changed
requirements were. Without this information it would be difficult
if not impossible for this court to determine what, if any, of the
requirements had changed. This information is also necessary to
determine whether Mother had been given adequate notice of the
requirements she must meet in order to purge her contempt.
¶17 Because Mother fails to provide any reasoned analysis and
does not cite the recommendations that she argues were added or
changed, we decline to address her insufficient notice issue based
on inadequate briefing. See Spencer v. Pleasant View City, 2003 UT
App 379, ¶ 20, 80 P.3d 546 (“It is well established that a reviewing
court will not address arguments that are not adequately briefed.”
(citation and internal quotation marks omitted)).
II. Contempt of Court Sanctions
¶18 Mother claims that the district court abused its discretion by
striking her pleading as a sanction for her failure to comply with a
custody evaluation order. Mother maintains that the court‐ordered
custody evaluation is not a discovery order and therefore the court
had authority to enforce the custody evaluation order only through
contempt proceedings, which authority she asserts does not allow
a court to strike pleadings and enter a default against a
noncompliant party. In the alternative, Mother argues that even if
the custody evaluation order is considered a discovery order, the
court abused its discretion by failing to notify her in advance that
any violation of the custody evaluation order could result in a
discovery sanction. Father counters that Mother failed to preserve
these arguments in the district court.
¶19 An issue is preserved for appeal when it has been presented
to the district court in such a way that the court has an opportunity
to rule on that issue. 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801. “To provide the court with this opportunity, the
issue must be specifically raised [by the party asserting error], in a
timely manner, and must be supported by evidence and relevant
legal authority.” In re D.B., 2012 UT 65, ¶ 17, 289 P.3d 45920110646‐CA 8 2013 UT App 235Wolferts v. Wolferts
(alteration in original) (citation and internal quotation marks
omitted).
¶20 Mother concedes, in her reply brief, that she did not raise
below the issues related to the district court’s ruling striking
Mother’s pleadings. She argues, however, that the preservation
rule does not prohibit an appellant from raising and discussing
controlling authority on appeal even if the controlling authority
was not presented to the district court. Alternatively, Mother
argues that this court should review her issues under the
exceptional circumstance doctrine or plain error. Mother, however,
raises both of these arguments for the first time in her reply brief.
We will not consider matters raised for the first time in the reply
brief. State v. Weaver, 2005 UT 49, ¶ 19, 122 P.3d 566 (“[T]his court
has required the party seeking appellate review on issues not
brought before the lower court to articulate the justification for
review in the party’s opening brief.”). Because Mother neither
preserved her arguments related to whether the district court
abused its discretion by striking her pleading, as a sanction for
contempt of court, nor timely asserted any exception to the
preservation rule on appeal, we do not consider these issues
further.
III. Best Interests of the Children Hearing
¶21 Mother next argues that the district court deprived her of
her constitutional right to testify and present evidence at the
hearing to determine the best interests of the Children. Father urges
this court to uphold the court’s modification of the divorce decree,
arguing that Mother waived her right to testify and invited error by
her conduct and counsel’s statements affirmatively representing
that Mother would not be prejudiced by her inability to call
witnesses and to testify on her own behalf at the best interests
hearing. We decline to consider whether Mother waived or invited
any error because we conclude, instead, that Mother failed to
preserve the issue.
¶22 In her statement of preservation in her opening brief,
Mother asserts that she preserved the issue of whether she should
20110646‐CA 9 2013 UT App 235Wolferts v. Wolferts
be allowed to testify or present evidence at the child custody
hearing. Mother did, indeed, preserve that issue by filing a motion
and orally requesting that the court allow her to call witnesses and
testify at the best interests hearing. She did not, however, preserve
her argument that limiting her participation to only cross‐
examination of the witnesses deprived her of her constitutional
right to testify and present evidence. The district court heard
arguments from the parties regarding what rights Mother, as a
defaulting party, would have to participate in the best interests
hearing. At an evidentiary hearing, Father was required to
demonstrate that the best interests of the Children would be served
by having custody of the Children transferred to him. Although
Mother requested that she be permitted to call her own witnesses
and testify herself at the best interests hearing, she did not assert
that she had a constitutional right to do so, nor did she argue she
would be prejudiced by such a restriction.5 As such, Mother did not
5
In response to Father’s argument that Mother should be
prohibited from calling witnesses and testifying herself,
Mother’s attorney stated as follows:
Your honor, [Father’s attorney] is correct . . .
regarding the witnesses that they are calling. The
Court will have ample opportunity to hear about
the case and to hear . . . what the professionals
believe is in the best interest of the children.
Which . . . from my knowledge is not going
to be in my client’s interest. Therefore, if I were to
call witnesses on my client’s behalf, . . . I’ll concede
at this point it is my belief that the Court will still
make the proper finding. Or at least the Court will
still have all of the evidence to make the finding.
And so I don’t think it will severely
prejudice them, given all of the witnesses that
they’re going . . . to call, for example, the custody
evaluator, . . . and all of the professionals.
I don’t have any professionals. I just simply
(continued...)
20110646‐CA 10 2013 UT App 235Wolferts v. Wolferts
present her constitutional argument to the district court in such a
way that it had an opportunity to rule on that issue. 438 Main St.,
2004 UT 72, ¶ 51; see also In re D.B., 2012 UT 65, ¶ 17 (“To provide
the court with this opportunity, the issue must be specifically
raised [by the party asserting error], in a timely manner, and must
be supported by evidence and relevant legal authority.” (alteration
in original) (citation and internal quotation marks omitted)); see also
In re A.K., 2012 UT App 232, ¶ 22, 285 P.3d 772 (“[T]he preservation
rule applies to every claim, including constitutional questions. . . .”
(alteration and omission in original) (citation and internal
quotation marks omitted)). Mother does not assert any exceptions
to the preservation rule. As a result, we do not consider Mother’s
constitutional argument.6
5
(...continued)
have lay members of the community that know
[Mother] to come forward. And to tell you the
truth, I’m not sure how much weight that will
carry with the Court.
And so whether I call witnesses or not, I’ll
concede right now I’m not sure if that’s gonna
make a difference. So the Court might as well let
me call witnesses if I’ve got two or three to call.
6
Mother also argues that public policy required that the
district court allow her to present evidence during the best
interests hearing. Mother asserts that the court abused its
discretion in limiting her participation in the best interests
hearing because it impacts innocent third parties and unlawfully
restricts the court’s ability to consider the Children’s best
interests. Nonetheless, we decline to consider this issue because
Mother did not provide this court with a citation to the record
showing that the issue was preserved below, see Utah R. App. P.
24 (a)(5)(A), nor did she argue that any exception to the
preservation rule applies, cf. In re D.B., 2012 UT 65, ¶ 17, 289 P.3d
459.
20110646‐CA 11 2013 UT App 235Wolferts v. Wolferts
IV. Attorney Fees on Appeal
¶23 Father requests attorney fees on appeal. “Generally, when
the trial court awards fees in a domestic action to the party who
then substantially prevails on appeal, fees will also be awarded to
that party on appeal.” Leppert v. Leppert, 2009 UT App 10, ¶ 29, 200
P.3d 223 (citation and internal quotation marks omitted). The
district court awarded Father attorney fees and costs incurred in
enforcing the court’s order. Father has prevailed on appeal.
Therefore, Father is entitled to reasonable attorney fees incurred on
appeal. Accordingly, we award Father attorney fees on appeal and
remand the matter to the district court for determination of the
amount of that award.
CONCLUSION
¶24 Mother preserved neither her issues related to the district
court’s ruling striking her pleadings nor her constitutional issues
in the district court. Therefore, we do not consider those issues on
appeal. Mother also fails to establish that the district court
committed any error in the manner in which it conducted the
contempt proceedings in this matter. Moreover, Mother’s
insufficient notice arguments are inadequately briefed. For these
reasons, we affirm the district court’s orders.
¶25 Father was awarded costs and fees below, has prevailed on
appeal, and now requests attorney fees on appeal. We therefore
award fees, and remand the issue of Father’s attorney fees to the
district court for its assessment.
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