Robinson v. Robinson

2016 UT App 32THE UTAH COURT OF APPEALS
MICHAEL S. ROBINSON,
Appellant,
v.
DEBRA J. ROBINSON,
Appellee.
Opinion
No. 20130652-CA
Filed February 19, 2016
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 074900501
F. Kevin Bond and Budge W. Call, Attorneys
for Appellant
Dean C. Andreasen and Diana L. Telfer, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and STEPHEN L. ROTH
concurred.
CHRISTIANSEN, Judge:
¶1 Michael S. Robinson (Husband) raises numerous
challenges to the district court’s findings, rulings, and orders in
the ongoing divorce litigation between himself and Debra J.
Robinson (Wife). We affirm.
BACKGROUND
¶2 Husband filed a petition for divorce in February 2007. At
that time, the marital estate included extensive real property,
including a commercial plaza known as Phoenix Plaza. Husband
Robinson v. Robinson
and Wife arrived at a stipulated property settlement agreement
on November 2, 2007 (the Stipulation). In the Stipulation, the
parties agreed that Phoenix Plaza had a fair market value of
$7.25 million. As relevant here, the Stipulation provided that
Husband would receive Phoenix Plaza and that he was required
to refinance the loan on the property. From the proceeds of the
refinance, Husband was to pay Wife $1,784,419 for her share of
Phoenix Plaza. The Stipulation required that Husband ‚file the
loan refinance application within 15 days of the date of [the
Stipulation+‛ and provided that ‚*i+f the re-financing does not
occur within one hundred twenty (120) days of the date the
parties sign *the Stipulation+,‛ Husband would pay 8 percent
interest to Wife on the amount owing to her.
¶3 Husband did not apply to refinance the Phoenix Plaza
loan within fifteen days of entering into the Stipulation, or at any
time thereafter. Wife moved for entry of a divorce decree based
on the Stipulation in February 2008. Husband moved to set aside
the Stipulation, ‚arguing that his performance under [the
Stipulation+ was excused because*,+ due to the parties’ mistaken
assumptions regarding the status of [leases at Phoenix Plaza], it
was impossible for him to secure the contemplated loan.‛
Robinson v. Robinson, 2010 UT App 96, ¶ 4, 232 P.3d 1081. The
district court denied Husband’s motion and entered a decree of
divorce incorporating the Stipulation on December 31, 2008.
Husband appealed. Id. ¶ 1.
¶4 This court affirmed the district court’s denial of
Husband’s motion to set aside, reasoning that ‚the evidence
Husband offer[ed] to show that the parties were mistaken as to
the value of the plaza speaks only to the value of the plaza after
events unfolded regarding the expiring leases.‛ Id. ¶ 10
(emphasis in original). In other words, ‚Husband set*+ forth no
evidence that at the time the stipulation was signed the plaza was
not worth the value the parties attributed to it.‛ Id. (emphasis in
original). This court also noted that even if Husband had made a
mistake in his valuation due to inadequate information, that
20130652-CA 2 2016 UT App 32Robinson v. Robinson
mistake would not be grounds to set aside the Stipulation,
because he had chosen to enter the Stipulation while aware of
the inadequacy. Id. ¶ 11. Finally, this court rejected Husband’s
impossibility claim because the impossibility he alleged existed
at the time the parties entered into the Stipulation and thus was
not ‚an unforeseen event occur[ring] after formation of the contract.‛
Id. ¶ 12 (emphases in original) (citation and internal quotation
marks omitted).
¶5 This court’s opinion affirming the district court’s denial of
Husband’s motion to set aside the Stipulation was issued on
April 22, 2010. On October 8, 2010, Wife moved for an order to
show cause for Husband to demonstrate why he should not be
held in contempt for failing to comply with the divorce decree
incorporating the Stipulation’s terms. Husband responded with
declarations to the effect that he would not have been able to
refinance Phoenix Plaza, even if he had submitted a financing
application. At the hearing on Wife’s motion, the parties agreed
to several measures intended to advance the sale of Phoenix
Plaza and another commercial property, Sandy Retail Center.
The commissioner struck Husband’s declarations, entered an
order incorporating the parties’ agreements, and certified the
contempt allegations for an evidentiary hearing before the
district court. Despite these proceedings, it appears that
Husband continued to frustrate the sale of Phoenix Plaza by
failing to sign listing agreements or respond to purchase offers.
Eventually, the district court ordered Husband to sign a
purchase contract addendum to accept a pending offer on
Phoenix Plaza; because Husband still refused, the court
authorized the court clerk to sign for him.
¶6 At the July 26, 2011 evidentiary hearing, the district court
found Husband in contempt for failing to comply with the
divorce decree. For a variety of reasons, the court’s written
findings, order, and judgment were not issued until March 1,
2012. These reasons included Husband’s pro se filing of a fraud
action against Wife, Husband’s bankruptcy filing, and
20130652-CA 3 2016 UT App 32Robinson v. Robinson
Husband’s motion asking the court to reject purchase offers for
Phoenix Plaza and Sandy Retail Center. Husband also recorded
lis pendens against Phoenix Plaza, Sandy Retail Center, and two
other properties. On February 3, 2012, the district court found
that the lis pendens against Sandy Retail Center was a wrongful
lien and declared it void ab initio. Nevertheless, on February 6,
2012, Husband recorded a second lis pendens against Sandy
Retail Center, and on February 7, 2012, Husband recorded a
second lis pendens against Phoenix Plaza. Thereafter, the district
court held a hearing on all six lis pendens and determined that
they were all wrongful liens and enjoined Husband from
interfering with the sale of Phoenix Plaza.
¶7 On March 1, 2012, the district court entered its written
findings, order, and judgment relating to the July 26, 2011
evidentiary hearing. The district court held Husband in
contempt for failing to comply with the divorce decree’s
requirement that he pay Wife the amounts he had agreed to in
the stipulation,1 entered a $1,912,696 judgment against Husband,
and awarded attorney fees to Wife.
¶8 Husband did not pay Wife the judgment amount.
Accordingly, Wife filed a writ of execution against a
condominium owned by Husband. Husband ceased paying the
mortgage for the condominium and, because Wife was a co-
obligor on the condominium’s mortgage, she began to pay the
mortgage to protect her credit. On October 2, 2012, the district
court ordered Husband to resume paying the mortgage and to
reimburse Wife. At a hearing on January 22, 2013, the court
reiterated its earlier order. And in a February 13, 2013 court
order, the court renewed its direction to Husband to pay the
1. In the Stipulation, Husband had agreed to pay Wife $1,784,419
for her interest in Phoenix Plaza, $105,777 for her interest in a
parking lot, and $22,500 in exchange for Husband being
awarded an airplane. The sum of these amounts is $1,912,696.
20130652-CA 4 2016 UT App 32Robinson v. Robinson
condominium mortgage and the amounts owed to Wife. Finally,
on April 9, 2013, the court entered an order to show cause
requiring Husband to demonstrate why he should not be held in
contempt ‚for violating the terms of the Order entered February
13, 2013, relative to the hearing conducted January 22, 2013, by
failing to reimburse [Wife]‛ and ‚by refusing to make the
February and March 2013 mortgage payments.‛ After an
evidentiary hearing, the district court declined to impose
statutory damages for the wrongful liens, declined to find
Husband in contempt for filing the lis pendens, and declined ‚in
the interest of justice‛ to impose further contempt findings or
sanctions against Husband. The court also stated that its
previous findings of contempt against Husband, including
contempt for failing to comply with the Phoenix Plaza
provisions of the Stipulation, remained in effect. The court also
awarded Wife attorney fees incurred from January 1, 2008,
through May 31, 2012.
ANALYSIS
I. The District Court Did Not Impose a Sanction in Excess of the
Actual Injury Caused by the Contempt.
¶9 Husband first contends that the district court erred by
entering the $1,912,696 judgment against him ‚based on *his]
alleged contempt in failing to refinance one piece of marital
property.‛ We review a district court’s award of sanctions for an
abuse of discretion. Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d
1079.
¶10 Husband appears to misunderstand the nature and basis
of the district court’s judgment. He notes that a court ‚‘does not
have discretion to impose a sanction beyond the actual injury
caused by the contemptuous behavior.’‛ (Quoting id. ¶ 52.)
Husband asserts that his ‚failure to file the loan application on
Phoenix Plaza did not cause the loss of the property or any
20130652-CA 5 2016 UT App 32Robinson v. Robinson
damages near $1.9 million‛ and concludes that ‚the $1.9 million
Judgment entered against [him] as a distribution of marital
property, based solely on [his] contempt in failing to apply for
the refinancing of Phoenix Plaza, is not proper under the law
and should be reversed.‛
¶11 If the facts were as Husband asserts, his argument might
have some merit. However, the district court found three
reasons to hold Husband in contempt: (1) failure to apply for a
refinance within the time frame contemplated by the Stipulation
or ever thereafter, as required by the divorce decree; (2) failure to
submit an application for a refinance, as required by the divorce
decree; and (3) failure to ‚[make+ a single payment‛ toward the
$1,912,696 that Husband agreed to pay to Wife under the
Stipulation and that the divorce decree ordered him to pay.
Accordingly, Husband’s failure to refinance was not the district
court’s ‚sole‛ basis for finding Husband in contempt. Nor did
the district court, as Husband asserts, ‚‘impose a sanction
beyond the actual injury caused by the contemptuous behavior’‛
by entering the judgment against Husband. (Quoting Goggin,
2013 UT 16, ¶ 52.) The sanction imposed on Husband as a result
of his contempt was ‚thirty days in the Salt Lake County jail,‛
which the district court suspended. The monetary judgment was
not a sanction; rather, it was a mechanism for Wife to collect the
money Husband had agreed, but failed, to pay her pursuant to
the divorce decree. Entering judgment against Husband based
upon the parties’ stipulation was clearly within the district
court’s authority.2
¶12 For these reasons, we conclude that Husband has failed to
show that the sanction and judgment imposed by the district
court constituted an abuse of its discretion.
2. We note that the $1,912,696 judgment is equal to the amount
Husband agreed, but failed, to pay under the Stipulation.
20130652-CA 6 2016 UT App 32Robinson v. Robinson
II. The District Court Did Not Hold Husband in Contempt for
Failing to ‚Go Back in Time.‛
¶13 Husband next contends that the district court erred by
holding him in contempt for failing to comply with the
refinancing provisions of the Stipulation as incorporated into the
divorce decree.3 Again, we review a district court’s award of
sanctions for an abuse of discretion. Goggin v. Goggin, 2013 UT
16, ¶ 26, 299 P.3d 1079.
¶14 Husband and Wife signed the Stipulation on November 2,
2007. The Stipulation required Husband to ‚re-finance the
mortgage encumbering the Phoenix Plaza‛ within 120 days; it
also required him to file ‚the loan refinance application within
15 days.‛ The Stipulation was not incorporated into a court
order until the December 31, 2008 divorce decree. Husband
argues that he ‚should not be held in contempt of a December
31, 2008 court order requiring him to go back in time to make a
loan application by November 17, 2007, i.e. within 15 days of the
parties’ November 2, 2007 Stipulation.‛
¶15 However, the district court did not hold Husband in
contempt merely for failing to file the refinance application
within fifteen days. On March 1, 2012, the district court made
three findings in support of its contempt ruling. First, the court
found that Husband ‚failed to apply for a loan to refinance the
Phoenix Plaza mortgage within the time agreed and has made no
application at any time thereafter.‛ (Emphasis added.) Second, the
court found that Husband ‚has still not submitted a mortgage
refinance application.‛ And third, the court found that Husband
‚has not made a single payment‛ toward the $1,912,696 he
3. This argument is an outgrowth of Husband’s earlier assertion
that the sanction was ‚based solely on *Husband’s+ contempt in
failing to apply for the refinancing of Phoenix Plaza.‛ As noted
above, that assertion is incorrect. See supra ¶ 11.
20130652-CA 7 2016 UT App 32Robinson v. Robinson
agreed to pay in the Stipulation and was ordered to pay in the
divorce decree. Thus, the court’s contempt ruling was based on
Husband’s ongoing inaction, not merely the fifteen-day period
in 2007. The terms of the Stipulation were incorporated into the
December 31, 2008 divorce decree, and Husband then failed to
comply with those terms for over three years.
¶16 Accordingly, Husband has not demonstrated that the
district court abused its discretion by holding him in contempt.
III. The Mistake and Impossibility Alleged by Husband Were
Not Defenses to Husband’s Contempt.
¶17 Husband contends that the district court erred by ruling
that, because the Utah Court of Appeals had previously rejected
mistake and impossibility as reasons to set aside the Stipulation,
Husband was precluded from asserting mistake and
impossibility as defenses to the district court’s determination
that he was in contempt for continuing to fail to comply with the
terms of the Stipulation incorporated into the divorce decree.
Under the law-of-the-case doctrine, a decision made on an issue
during one stage of a case is binding on successive stages of the
same litigation. IHC Health Servs. Inc., v. D & K Mgmt., Inc., 2008
UT 73, ¶ 26, 196 P.3d 588. We review the application of the law-
of-the-case doctrine for correctness. Macris v. Sculptured Software,
Inc., 2001 UT 43, ¶ 14, 24 P.3d 984.
¶18 Husband previously moved to set aside the Stipulation
under the contractual defenses of mistake and impossibility.
Robinson v. Robinson, 2010 UT App 96, ¶ 4, 232 P.3d 1081. The
district court denied that motion, and Husband appealed. Id.¶¶ 4–5. He argued that the parties had been mistaken as to the
amount of money Phoenix Plaza would generate, the value it
would have, the vacancy rate that would exist, whether the
existing leases would be sufficient to secure a new loan on the
property, whether the tenants would sign new leases, and
whether Husband would be able to refinance the loan. Id. ¶ 10.
20130652-CA 8 2016 UT App 32Robinson v. Robinson
This court rejected Husband’s arguments and affirmed,
reasoning that Husband had not alleged a mistake that existed at
the time the parties entered into the Stipulation and that
Husband had accepted any risk of a mistake by entering into the
Stipulation while aware that his knowledge was limited. Id.¶¶ 10–11. Husband also argued that the parties’ mistakes about
the status of Phoenix Plaza made it impossible for him to comply
with the Stipulation. Id. ¶ 4. Because Husband had not alleged
an unforeseen event occurring after the Stipulation was signed,
this court determined that the impossibility ‚defense *was+
wholly inapplicable‛ Id. ¶ 12. Accordingly, this court affirmed
the district court’s denial of the motion to set aside the
Stipulation.
¶19 Despite losing his first appeal, Husband did not comply
with the divorce decree, which incorporated the Stipulation’s
terms. And nearly two years later, the district court held
Husband in contempt for failing to do so. Husband argued that
contempt was inappropriate due to mistake or impossibility. The
district court ruled that this court’s determination that neither
mistake nor impossibility were reasons to set aside the
Stipulation precluded Husband from claiming them as excuses
for his continuing failure to comply with the divorce decree
entered based on the Stipulation.
¶20 Now on appeal for a second time, Husband asserts that
‚although [he] did not prevail on his attempt to have the
Stipulation set aside based on mistake or impossibility, he was
entitled to raise these issues in defense to the contempt charges
brought against him.‛ Husband argues that, in order to find him
in contempt, the district court was required to find that he knew
what was required, had the ability to comply, and intentionally
failed to do so. However, without regard to the correctness of the
exact procedure followed by the district court, Husband’s
mistake and impossibility defenses are meritless.
20130652-CA 9 2016 UT App 32Robinson v. Robinson
¶21 In the previous appeal, this court explained that a defense
of mistake was unavailable because Husband did not allege any
mistake that may have existed at the time he entered into the
Stipulation. Robinson, 2010 UT App 96, ¶ 10. Rather, ‚the
evidence Husband offer[ed] to show that the parties were
mistaken as to the value of [Phoenix Plaza] [spoke] only to the
value of the plaza after events unfolded regarding the expiring
leases.‛ Id. (emphasis in original). ‚Husband set[] forth no
evidence that at the time [the Stipulation] was signed the plaza was
not worth the value the parties attributed to it.‛ Id. (emphasis in
original). Because no mistake existed at the time of the
Stipulation, we fail to see how Husband could demonstrate that
the same alleged mistake is a defense to the contempt ruling.
Thus, even if the court should have considered this mistake as a
defense to contempt, any error was harmless and must be
disregarded. See Utah R. Civ. P. 61.
¶22 With respect to Husband’s claim of impossibility,
Husband concedes that the impossibility defense to a contract
only discharges an obligation if an unforeseen event that makes
performance of the obligation impossible or highly impracticable
occurs after formation of the contract. He asserts, though, that
‚impossibility of performance can be a defense to an allegation
of contempt.‛ Husband cites Bradshaw v. Kershaw, 627 P.2d 528,
530 (Utah 1981), for the proposition that ‚no contempt *will lie]
when the subject property was beyond the party’s power to
convey.‛ However, Bradshaw is more nuanced than Husband’s
summation.
¶23 In Bradshaw, the appellant entered into a contract in 1970
to sell a parcel of land and a well permit to a buyer. Bradshaw,
627 P.2d at 529. The appellant then sold the land and well permit
to other buyers later that year. Id. In 1973, the district court
granted specific performance of the contract to the original
buyer; the Utah Supreme Court affirmed that order in 1974. Id. at
530. The original buyer brought contempt proceedings against
the appellant after he still did not convey the land and well
20130652-CA 10 2016 UT App 32Robinson v. Robinson
permit. Id. In 1976, the district court held appellant in contempt
for his failure to comply with the 1973 order. Id. The appellant
then conveyed the land but not the well permit. Id. Later in 1976,
the appellant filed papers asserting for the first time that it was
impossible for him to comply as to the well permit. Id. In 1979,
the district court held appellant in continued contempt for
failing to convey the well permit. Id. The Utah Supreme Court
affirmed that ruling in all respects. Id.¶24 The Utah Supreme Court explained that impossibility
may be a defense to contempt in circumstances where the
impossibility arose after the initial order: ‚Conceivably a person
might, while he had the ability to comply therewith, deliberately
fail to obey the court’s order, and then after his contempt was
complete lose the ability to perform, but he would still be guilty
of past contempt.‛ Id. at 531 (citation and internal quotation
marks omitted). But ‚*a+s to impossibility as of the time of the
initial order, appellant cannot raise that defense at this stage
because it is now res judicata.‛ Id.
¶25 Here, Husband does not argue that some unforeseen
event has since occurred causing the loss of his ability to
perform.4 Rather, his argument apparently rests on the same
factual basis as his impossibility claim in his previous appeal—
that ‚due to the parties’ mistaken assumptions regarding the
status of the plaza’s leases, it was impossible for him to secure
the contemplated *refinancing+ loan on the plaza.‛ See Robinson
v. Robinson, 2010 UT App 96, ¶ 4, 232 P.3d 1081. Husband simply
asserts that ‚the elements for contempt are completely different,
the issues are different, and even the burdens of proof are
different, than what is required to set aside a contract based on
mistake or impossibility.‛ But Husband ignores that he was held
in contempt for failing to comply with a court order based on a
4. For example, Husband does not claim that refinancing was
impossible due to an unforeseen change in market conditions.
20130652-CA 11 2016 UT App 32Robinson v. Robinson
contract, i.e., the divorce decree incorporating the Stipulation’s
terms, by not filing an application for refinancing within the
agreed upon time and for not paying to Wife the money he
agreed to pay her. Accordingly, Husband has failed to show
error in the district court’s determination that his impossibility
claim was barred because that claim had already been ruled
upon.
IV. The Law-of-the-Case Doctrine Bars Husband’s Defenses
Based on Allegations of Fraud.
¶26 Husband contends that the district court erred by ruling
that res judicata barred him from raising Wife’s alleged fraud as
a defense to the contempt charges. Husband had raised the fraud
allegations in his initial challenge to the validity of the
Stipulation, and the district court had found that Wife ‚didn’t
engage in any fraudulent or deceptive behavior or bad faith.‛
But when Husband appealed from the entry of the divorce
decree, which incorporated the terms of the Stipulation, he
challenged the district court’s rulings on his mistake and
impossibility claims without challenging the court’s finding that
Wife had not acted fraudulently, deceptively, or in bad faith. The
district court here noted, ‚That issue was not taken up on
appeal‛ and ruled that claim preclusion applied. The parties and
the court appear to have meant the closely related law-of-the-
case doctrine rather than true res judicata. See State v. Waterfield,
2014 UT App 67, ¶ 39 n.12, 322 P.3d 1194 (‚Res judicata applies
as between multiple cases while the law of the case doctrine
applies to successive proceedings within one case.‛). Whether
preclusive effect arises from either res judicata or the law-of-the-
case doctrine presents a question of law, and we review the
district court’s resolution of that question for correctness. See
Macris v. Sculptured Software, Inc., 2001 UT 43, ¶ 14, 24 P.3d 984(as to the law-of-the-case doctrine); Macris & Assocs., Inc. v.
Neways, Inc., 2000 UT 93, ¶ 17, 16 P.3d 1214 (as to res judicata).
20130652-CA 12 2016 UT App 32Robinson v. Robinson
¶27 Husband argues that he ‚could not have raised the issue
of fraud as a defense to the contempt charges‛ in the earlier
appeal, because those charges arose only after the Stipulation
was upheld on appeal. He asserts that ‚the issue as to whether
fraud may be a defense to set aside the Stipulation is not
identical to the one presented in the instan[t] action, i.e. using
fraud as a defense to the contempt charges that were later
brought against [Husband].‛
¶28 We see Husband’s argument about Wife’s alleged fraud
as simply an attempt to relitigate an issue already decided
during the course of this lengthy litigation. The district court
upheld the Stipulation after finding that, among other things,
Wife had not engaged in ‚any fraudulent or deceptive behavior
or bad faith,‛ and Husband did not challenge that finding on
appeal. See Robinson, 2010 UT App 96. The court’s finding
therefore became part of the law of the case. Cf. Thurston v. Box
Elder County, 892 P.2d 1034, 1037 & n.2, 1038 (Utah 1995) (noting
that failure of the parties on appeal to challenge a trial court’s
ruling renders that ruling binding on the appellate courts).
Husband then sought to argue that his contempt in failing to
comply with the decree based on the Stipulation was excusable
because, in his view, Wife did commit fraud. The underlying
factual issue is identical—whether Wife committed fraud. The
only difference is the legal consequence: fraud as a defense to
contempt rather than fraud as a reason to set aside the
Stipulation.5 Because the law of the case is that Wife did not
commit fraud, Husband cannot now raise a defense based on
Wife having committed fraud.
¶29 Husband has failed to demonstrate error in the district
court’s ruling that he was precluded from arguing a new legal
5. Indeed, we cannot see how Husband could prevail on his
claim that his contempt was excused by fraud when no fraud
had ever been proven.
20130652-CA 13 2016 UT App 32Robinson v. Robinson
consequence based on a factual predicate the court had already
rejected.
V. The District Court Did Not Rule on the Viability of Separate
Actions Based on Husband’s Fraud Claims.
¶30 Husband next contends that ‚it was improper for the
divorce court to state that *Husband’s+ tort claims, including his
claims for fraud, are barred under the doctrine of claim
preclusion or res judicata, simply because he did not raise them
in this divorce action.‛ This contention is inadequately briefed.
See Utah R. App. P. 24(a). Husband does not explain how the
substance of this contention differs from his claim that Wife
committed fraud (as discussed in Part IV), nor does Husband
identify any new legal effect stemming from the court’s
statement. Indeed, the district court here did not adjudicate
Husband’s separate fraud actions. Rather, it found that his
allegations of fraud were not a valid basis to set aside the
Stipulation or to excuse Husband’s failure to comply with the
decree incorporating that Stipulation. In any event, the
contention appears to be immaterial, given that Husband has
raised and lost his fraud claims in a separate case, which we
affirm today without resort to principles of res judicata. See
Robinson v. Robinson, 2016 UT App 33.
VI. Husband Cannot Relitigate the Issue of Whether the District
Court Could Enforce the Parties’ Stipulation Without Entering
Further Findings.
¶31 Husband contends that ‚the district court abused its
discretion by enforcing a stipulation knowing that its terms did
not provide for a fair and equitable distribution of the parties’
marital assets.‛ We review a district court’s property division
determinations for an abuse of discretion, so long as those
determinations are based upon adequate factual findings. See
Hodge v. Hodge, 2007 UT App 394, ¶ 3, 174 P.3d 1137.
20130652-CA 14 2016 UT App 32Robinson v. Robinson
¶32 This contention appears to be largely a rehash of an issue
decided in Husband’s first appeal:
Husband next argues that the district court erred in
failing to make a determination that the division of
assets contained in the stipulation was fair and
reasonable. But the district court did discuss
whether the division of the properties was
equitable . . . . Husband correctly asserts that a
stipulation dividing property between divorcing
parties should be adopted only if the court believes
it to be fair and reasonable. But Husband provides
no authority for his resulting assertion that a
district court may not enforce a stipulation unless
the district court makes a formal finding that it is
fair and reasonable. And the presumption seems to
be the exact opposite, that is, that a stipulation will
ordinarily be enforced unless the court finds it to
be unfair or unreasonable. Thus, from the district
court’s decision to enforce the stipulation, we
assume—and have no findings that would indicate
otherwise—that the court determined that the
property division was equitable.
Robinson v. Robinson, 2010 UT App 96, ¶ 13, 232 P.3d 1081(emphases in original) (citations and internal quotation marks
omitted).
¶33 Here, Husband repeats this argument, simply adding his
assertion that the district court knew that the Stipulation was
unfair or inequitable. He draws support for this assertion from
two sources. First, he points (again) to the absence of a formal
fairness determination by the district court. This resurrected
claim borders on frivolity. Second, Husband claims that ‚the
court did not make any attempt to see that the marital
distribution was fair and equitable.‛ But, as this court’s prior
opinion explained, the absence of findings does not lead to a
20130652-CA 15 2016 UT App 32Robinson v. Robinson
presumption that the district court abdicated its duty. Indeed,
this court determined that the district court did not do so.
¶34 Husband has not identified anything in the record or in
the district court’s many rulings to suggest that the court
knowingly condoned inequity;6 accordingly, this court’s prior
ruling on this issue stands.
VII. The Wrongful Lien Statute Applies to Lis Pendens and the
District Court Had Jurisdiction to Release the Lis Pendens and
Made Sufficient Findings to Do So.
¶35 Husband contends that the district court erred by finding
the lis pendens he recorded on Phoenix Plaza and another
commercial property were wrongful liens and by ordering them
removed. Husband argues that Utah does not recognize lis
pendens as wrongful liens, that Wife’s motions to release the lis
pendens were improperly filed in the court hearing the divorce
action rather than the court hearing the fraud action on which he
based the lis pendens, and that the divorce court failed to make
sufficient findings. We review a district court’s interpretation
and application of a statute for correctness. Bott v. Osburn, 2011
UT App 139, ¶ 5, 257 P.3d 1022.
¶36 Husband relies on Utah Code section 38-9-2(2), which
provided that the wrongful lien statute ‚shall not prevent a
person from filing a lis pendens in accordance with Section 78B-
6-1303 or seeking any other relief permitted by law.‛ Utah Code
6. ‚Lawyers shall not, without an adequate factual basis,
attribute to other counsel or the court improper motives,
purpose, or conduct.‛ Utah R. Jud. Admin. 14-301(3) (setting
forth standards of professionalism and civility).
20130652-CA 16 2016 UT App 32Robinson v. Robinson
Ann. § 38-9-2(2) (LexisNexis 2005).7 Section 78B-6-1303 provides
that ‚*e+ither party to an action affecting the title to, or the right
of possession of, real property may file a notice of the pendency
of the action with the county recorder . . . .‛ Utah Code Ann.
§ 78B-6-1303(1) (LexisNexis 2012). The interplay between these
two statutes was addressed in Eldridge v. Farnsworth, 2007 UT
App 243, 166 P.3d 639. Husband characterizes Eldridge as
holding that ‚the filing of a lis pendens did not constitute a
wrongful lien because of the explicit exception in [Utah Code
section 38-9-2(2).+‛ (Citing Eldridge, 2007 UT App 243, ¶¶ 47–49.)
On this basis, Husband asserts that ‚a lis pendens cannot be a
‘wrongful lien’ as defined under Utah’s Wrongful Lien Statute,
because the filing of a lis pendens under § 78B-6-1303 is
explicitly exempt from Utah’s Wrongful Lien Statute under
§ [3]8-9-2(2).‛
¶37 However, Husband’s argument misconstrues the holding
of Eldridge. In Eldridge, the trial court declined to award to the
prevailing defendants treble damages, attorney fees, and costs
under the wrongful lien statute because it ruled that the
particular lis pendens at issue did not constitute a wrongful lien.
Eldridge, 2007 UT App 243, ¶ 1. The defendants appealed,
arguing that the trial court should have found the lis pendens
wrongful because it was filed in bad faith. Id. ¶ 47. They further
argued that even if it was not wrongful for that reason, it became
wrongful once the trial court determined the plaintiffs were not
likely to succeed and dissolved a temporary restraining order. Id.
This court affirmed the trial court’s ruling, noting that ‚when
evaluating *the plaintiffs’+ lis pendens‛ under the wrongful lien
statute, ‚the trial court was required to evaluate its validity
based on the facts known at the time it was recorded, not at a
later point in time after evaluating the merits.‛ Id. ¶ 50. Eldridge
7. This statute has since been renumbered without changes
relevant here. See Utah Code Ann. § 38-9-103(2) (LexisNexis
2014).
20130652-CA 17 2016 UT App 32Robinson v. Robinson
therefore explains the point at which the good or bad faith of the
party who filed the lis pendens should be evaluated under the
wrongful lien statute. It does not, as Husband asserts,
‚explicitly‛ articulate a blanket exception to the wrongful lien
statute for all lis pendens. Indeed, by describing the correct
application of the statutes to one another, Eldridge contradicts
Husband’s claim that the ‚plain, unambiguous language of § 38-
9-2(2) . . . specifically exempts the filing of a lis pendens in a
pending case*+ from the scope of Utah’s Wrongful Lien Statute.‛
¶38 Having determined that the wrongful lien statute can
apply to the filing of a lis pendens, we turn to Husband’s
argument that a motion to release a lis pendens must be filed in
the same case as the case to which the lis pendens applies. The lis
pendens statute provides that parties affected by the lis pendens
‚may make a motion to the court in which the action is pending
to release the notice.‛ Utah Code Ann. § 78B-6-1304(1)
(LexisNexis 2012). ‚A court shall order a notice released if,‛ after
receiving the motion, ‚the court finds that the claimant has not
established by a preponderance of the evidence the probable
validity of the real property claim that is the subject of the
notice.‛ Id. § 78B-6-1304(2).
¶39 Husband’s lis pendens was captioned with case number
110412982 in the West Jordan Department of the Third Judicial
District Court. This number corresponds to Husband’s separate
fraud lawsuit against Wife. However, Wife’s motion to nullify
the lis pendens was filed in the divorce action, which is case
number 074900501 in the Salt Lake Department of the Third
Judicial District Court. The court hearing the divorce action then
granted the motion to nullify. That court suggested three reasons
for rejecting Husband’s claim that the motion to nullify was filed
in the wrong court. First, it reasoned, because ‚the property in
question is a marital asset subject to the jurisdiction of this court‛
and because ‚this court has in the past entered orders associated
with that property,‛ ‚this court respectfully submits that it has
the authority to issue orders in aid of its jurisdiction or orders
20130652-CA 18 2016 UT App 32Robinson v. Robinson
that are necessary or appropriate to carry out or enforce its prior
orders.‛ Second, the court noted that section 78B-6-1304(1) was
phrased permissively, suggesting that courts other than the one
responsible for the action to which the lis pendens pertains are
also able to adjudicate motions related to the lis pendens’
validity. Third, the court noted that the fraud action was also
pending in the Third Judicial District Court, albeit in a different
department and before a different judge than the divorce case.
¶40 On appeal, Husband ignores the district court’s reasoning
and simply asserts that the divorce court ‚intruded upon the
exclusive jurisdiction of the West Jordan Court.‛ But Husband
provides no authority suggesting that the court’s assertion of
jurisdiction was inappropriate. Similarly, Husband does not
explain why, or even explicitly claim that, the West Jordan and
Salt Lake departments of the Third Judicial District Court do not
constitute the same court.8 Husband’s argument in this regard is
therefore inadequately briefed. See Utah R. App. P. 24(a)(9), see
also Salt Lake County v. Butler, Crockett & Walsh Dev. Corp., 2013
UT App 30, ¶ 28, 297 P.3d 38 (‚This court will not reverse a
ruling of the trial court that rests on independent alternative
grounds where the appellant challenges only one of those
grounds.‛); Benns v. Career Serv. Review Office, 2011 UT App 362,
¶ 2, 264 P.3d 563 (per curiam) (‚If an appellant does not
challenge the lower court’s basis for its judgment, the lower
court’s determination is placed beyond the reach of [the
appellate courts+.‛).
¶41 Husband further argues that ‚the court in which the
motion is made [must] make a finding by a preponderance of the
evidence as to the probable validity of the real property claim
8. In the law-of-the-case context, Utah courts have noted that
‚two judges, while different persons, constitute a single judicial
office.‛ Gillmor v. Wright, 850 P.2d 431, 439–40 (Utah 1993)
(Orme, J., concurring).
20130652-CA 19 2016 UT App 32Robinson v. Robinson
contained in the action, and that did not occur in this case by
either court.‛ It is true that, under section 78B-6-1304(2)(b), a
court shall order a lis pendens released if it makes such a
finding. However, the lis pendens statute requires the lis
pendens to satisfy other requirements as well. See Utah Code
Ann. § 78B-6-1303. For example, ‚*e+ither party to an action
affecting the title to, or the right of possession of, real property
may file‛ a lis pendens, and the lis pendens ‚shall contain‛ the
parties’ names, the object of the action, and a description of the
affected property. Id. We see no reason why failure to comply
with these preliminary requirements should not also be grounds
to release the lis pendens.
¶42 Here, the district court released the lis pendens because it
found that ‚*t+he Lis Pendens provides no notice of claim or
interest to the Property.‛ Husband does not challenge this
finding. Because this finding alone is sufficient to invalidate the
lis pendens, Husband cannot show that the district court erred
by failing to nevertheless continue on to an analysis of ‚the
probable validity of the real property claim contained in the
pending action.‛ See Butler, Crockett & Walsh, 2013 UT App 30,
¶ 28.
¶43 We conclude that Husband has failed to demonstrate
error in the district court’s decision to release the lis pendens.
VIII. The District Court Correctly Awarded Attorney Fees to
Wife.
¶44 Husband contends that the district court erred by failing
to determine what portion of the attorney fees awarded to Wife
related to establishing the division of the parties’ property and
by failing to enter findings regarding need, ability to pay, and
reasonableness of the fees. We generally review a district court’s
decision regarding attorney fees in a divorce proceeding for an
abuse of discretion. Connell v. Connell, 2010 UT App 139, ¶ 6, 233
P.3d 836. However, when we review an award of attorney fees
20130652-CA 20 2016 UT App 32Robinson v. Robinson
pursuant to a contract, we review the district court’s
interpretation of the contract language for correctness. PC Crane
Serv., LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 6, 273
P.3d 396.
¶45 Utah Code section 30-3-3 forms the statutory basis for an
attorney fees award in a divorce action. ‚Utah Code section 30-3-
3 creates two classes of attorney fees—those incurred in
establishing court orders and those incurred in enforcing court
orders[.]‛ Connell, 2010 UT App 139, ¶ 28 (emphases in original).
Because the two classes have different purposes, the
requirements for an award of each class of attorney fees are also
different. Id. ¶ 29. ‚Fees awarded *in the first class+ must be
based on the usual factors of need, ability to pay, and
reasonableness.‛ Id. ¶ 28. ‚By contrast, in awarding fees *in the
second class], the court may disregard the financial need of the
moving party.‛ Id. (citation and internal quotation marks
omitted).
¶46 Here, there was also a contractual basis for an attorney
fees award. The Stipulation provided, ‚The prevailing party to
an action for breach of a term of this Agreement shall be entitled
to his or her attorneys fees and costs.‛ This provision was
incorporated into the decree of divorce: ‚The prevailing party to
an action for breach of a term of the Agreement shall be entitled
to his or her attorneys fees and costs.‛ The decree itself thus
provided a basis for an award of fees in addition to the statutory
bases set out in Utah Code section 30-3-3.
¶47 After this court upheld the Stipulation in Robinson v.
Robinson, 2010 UT App 96, 232 P.3d 1081, the parties endured
several additional years of litigation. It appears that all of these
subsequent proceedings concerned the enforcement of the
provisions of the divorce decree incorporated from the
Stipulation, whether by judgments, court-ordered sale of
property, or contempt charges. For example, the contempt
charges concerned Husband’s failure to refinance Phoenix Plaza,
20130652-CA 21 2016 UT App 32Robinson v. Robinson
failure to even apply for a refinance of Phoenix Plaza, and failure
to pay Wife $1,912,696, all of which were requirements of the
divorce decree. Similarly, the court order requiring the sale of
Phoenix Plaza was aimed at generating liquid funds so that Wife
could be paid under the terms of the divorce decree.
¶48 The district court’s findings of fact with regard to attorney
fees stated, ‚The Court finds that *Wife+ should be awarded her
attorneys’ fees and costs incurred from January 1, 2008 through
May 31, 2012‛ and ‚*Wife+ was also previously awarded
attorneys’ fees and costs . . . in the Court’s Order entered April
12, 2013 . . . and that Order stands.‛ The court’s final order
repeated these findings.
¶49 There are two plausible readings of the court’s order. The
court may have awarded what would be essentially contractual
attorney fees to Wife pursuant to the Stipulation. Alternatively,
the court may have awarded statutory attorney fees to Wife
pursuant to section 30-3-3.
¶50 On appeal, Husband asserts that the district court’s
findings on this issue fail to distinguish fees incurred in
proceeding to trial from fees incurred to enforce existing orders.9
This is a challenge to the adequacy of the findings supporting a
statutory award. But Husband does not raise an argument
regarding whether the basis for the attorney fees award was
contractual or statutory. Nor did he preserve such a claim for
9. In support of this argument, Husband cites Moon v. Moon,
1999 UT App 12, ¶ 28, 973 P.2d 431, for the proposition that
‚because the fees from each proceeding were lumped together
without distinction, the appellate court could not conduct any
meaningful review and the matter was remanded to the district
court to more clearly enunciate its findings with respect to the
two types of fees.‛ But in Moon, this court actually affirmed the
attorney fees awards made by the district court. Id. ¶¶ 35–38.
20130652-CA 22 2016 UT App 32Robinson v. Robinson
appeal. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801 (‚Issues that are not raised at trial are usually deemed
waived.‛); see also Wohnoutka v. Kelley, 2014 UT App 154, ¶¶ 3–4,
330 P.3d 762 (explaining that ‚*t+he preservation
requirement . . . ensures that both the issue on appeal and the
evidence necessary to decide it have been presented to the trial
court‛ which is better positioned to consider the issue).
Husband’s arguments relating to the propriety of a statutory
claim for attorney fees therefore fail. Cf. Salt Lake County v. Butler,
Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 28, 297 P.3d 38(‚This court will not reverse a ruling of the trial court that rests
on independent alternative grounds where the appellant
challenges only one of those grounds.‛); Benns v. Career Serv.
Review Office, 2011 UT App 362, ¶ 2, 264 P.3d 563 (per curiam)
(‚If an appellant does not challenge the lower court’s basis for its
judgment, the lower court’s determination is placed beyond the
reach of *the appellate courts+.‛).
¶51 Moreover, even if the award were based on statute, the
only court orders implicating the establishment of the divorce
decree were issued prior to this court’s previous decision
affirming those orders. It appears that the proceedings
undertaken after Robinson v. Robinson, 2010 UT App 96, 232 P.3d
1081, were largely if not entirely occasioned by Husband’s
continuing refusal to comply with the terms of the Stipulation
and the divorce decree. This would make them ‚enforcement‛
rather than ‚establishment‛ orders. Husband points to the fact
that the district court modified portions of its earlier order,
asserting that the modifications fulfilled an ‚equalizing
function‛ and thus should be equated with ‚establishing‛ court
orders. But the modifications Husband cites appear to have been
necessitated by events occurring after the 2010 decision. Thus,
the need for the modifications may well have never arisen had
Husband promptly complied with the terms of the Stipulation
upon signing it on November 2, 2007; upon receiving the
December 31, 2008 decree of divorce; or upon the issuance of this
court’s April 22, 2010 decision. Husband provides no authority
20130652-CA 23 2016 UT App 32Robinson v. Robinson
or analysis to explain why modifications necessitated by his own
recalcitrance should be categorized as ‚establishing‛ rather than
‚enforcement‛ court orders.
¶52 We next consider Husband’s contention that the district
court failed to enter detailed factual findings as to need, ability
to pay, and reasonableness of the attorney fees awarded to Wife.
When a district court makes a statutory award of attorney fees
pursuant to subsection 1, the order-establishment prong of
section 30-3-3, it should consider the recipient spouse’s financial
need, the payor spouse’s ability to pay, and the reasonableness
of the requested fees. Connell v. Connell, 2010 UT App 139, ¶ 27,
233 P.3d 836. But there is no equivalent requirement that a
district court consider these factors when awarding attorney fees
pursuant to a contract or under the enforcement prong of section
30-3-3. See Jones v. Riche, 2009 UT App 196, ¶ 2, 216 P.3d 357(noting that contractual attorney fees clauses are not
discretionary and must be applied strictly in accordance with the
contract terms); Gore v. Grant, 2015 UT App 113, ¶ 25, 349 P.3d
779 (‚In assessing a request for enforcement *attorney+ fees
[pursuant to Utah Code section 30-3-3(2)], the district court may
disregard the financial need of the moving party.‛ (citation and
internal quotation marks omitted)). As we have explained, we
see no basis for classifying the attorney fees award here as
related to orders implicating the establishment of the decree or
any other order.
¶53 We conclude that Husband’s arguments relating to
attorney fees under the establishment prong of section 30-3-3 fail
to demonstrate error in the district court’s award of attorney
fees.
IX. The District Court Acted Within Its Discretion in Denying
Husband’s Request for an Attorney Fees Award.
¶54 Husband next contends that the district court erred by
failing to determine what fees were incurred in the contempt
20130652-CA 24 2016 UT App 32Robinson v. Robinson
proceedings and by failing to award attorney fees to Husband as
the prevailing party. We generally review a district court’s
attorney fees decisions in a divorce proceeding for an abuse of
discretion. Connell v. Connell, 2010 UT App 139, ¶ 6, 233 P.3d 836.
Where that decision concerns the proper interpretation of a
statute, we review the district court’s interpretation for
correctness. Id.¶55 ‚In any action to enforce . . . [the] division of property in a
domestic case, the court may award costs and attorney fees upon
determining that the party substantially prevailed upon the
claim or defense.‛ Utah Code Ann. § 30-3-3(2) (LexisNexis 2012).
‚The court, in its discretion, may award no fees or limited fees
against a party if the court finds the party is impecunious or
enters in the record the reason for not awarding fees.‛ Id.¶56 Husband argues that the district court ‚erred in failing to
make any determination as to what fees were incurred on the
contempt claims.‛ He asserts that he ‚prevailed on the majority
of the contempt issues,‛ and that the court nevertheless denied
his attorney fees request. He notes that the court awarded Wife
attorney fees ‚which in effect resulted in *Husband+ paying
*Wife+ for her attorneys’ fees on the very contempt charges,
*Husband+ prevailed on at trial.‛
¶57 On March 1, 2012, the district court entered findings
related to certain contempt claims against both Husband and
Wife. The court ruled that ‚*Husband+ is in contempt‛ and that
‚*Wife+ is not in contempt.‛ It then sentenced Husband to ‚thirty
days in the Salt Lake County jail, which sentence is suspended at
the present time.‛
¶58 On May 29, 2013, the district court entered additional
findings of fact and conclusions of law relating to other
contempt charges. Although it found that ‚*Husband+ filed lis
pendens on the parties’ properties to prevent *court-ordered]
sales,‛ it declined to hold Husband in contempt for doing so due
20130652-CA 25 2016 UT App 32Robinson v. Robinson
to the court’s lingering doubts ‚as to whether Utah’s Wrongful
Lien Act should apply to a lis pendens.‛ It disapproved of
Husband’s actions on four other contempt charges, but declined
to find him in contempt because Wife had undertaken similar
actions and thus had ‚unclean hands [and was] not in a position
to enforce‛ contempt orders against Husband. The court found
that Wife had not proven two of the contempt charges by clear
and convincing evidence. And it affirmed two previous findings
of Husband’s contempt. In short, on four counts both parties had
acted in contempt of court, on two counts Wife had failed to
show Husband was in contempt, and on two counts the court
held Husband in contempt.
¶59 We read these findings as the reason the district court
declined to award attorney fees to Husband and readily
conclude that the district court acted within its discretion when
it declined to do so. See Utah Code Ann. § 30-3-3(2).
X. Wife is Entitled to an Award of Attorney Fees Incurred on
Appeal.
¶60 Wife seeks an award of her attorney fees incurred on
appeal. Generally, a party that received attorney fees below and
prevails on appeal is entitled to fees reasonably incurred on
appeal. Giles v. Mineral Resources Int’l, Inc., 2014 UT App 259,
¶ 25, 338 P.3d 825. Wife received attorney fees below and
prevailed on appeal. Accordingly, Wife is entitled to an award of
attorney fees reasonably incurred on appeal.
CONCLUSION
¶61 Husband has not demonstrated that the district court
abused its discretion by holding him in contempt, by sanctioning
him, or by refusing his request for attorney fees. Husband has
not shown that the district court erred in determining that his
mistake, impossibility, and fraud defenses to contempt were
20130652-CA 26 2016 UT App 32Robinson v. Robinson
barred. Nor has he demonstrated error in the district court’s
decision to release the lis pendens or in its award of attorney fees
to Wife. Husband did not sufficiently brief his other claims.
¶62 We affirm the district court in all respects. We remand
this case to the district court for the limited purpose of
calculating the amount of Wife’s attorney fees incurred on
appeal and awarding them.
20130652-CA 27 2016 UT App 32