McQuarrie v. McQuarrie

2019 UT App 147THE UTAH COURT OF APPEALS
MELVIN C. MCQUARRIE,
Appellant and Cross-appellee,
v.
JANETTE COLLEDGE MCQUARRIE,
Appellee and Cross-appellant.
Opinion
No. 20170956-CA
Filed August 29, 2019
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 084904419
James A. McIntyre and Richard R. Golden, Attorneys
for Appellant and Cross-appellee
Douglas B. Thayer, Andrew V. Wright, and Cole L.
Bingham, Attorneys for Appellee and
Cross-appellant
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
APPLEBY, Judge:
¶1 Melvin C. McQuarrie appeals the district court’s order
dismissing his counter-petition to modify a divorce decree
(Decree). He argues the court erred in determining that his
alimony obligation did not terminate when Janette Colledge
McQuarrie remarried. Janette 1 cross-appeals, arguing the court
1. As is our practice when the parties have the same last name,
we refer to them by their first names with no disrespect intended
by the apparent informality.
McQuarrie v. McQuarrie
erred in calculating her attorney fees award and in denying
portions of her motion for an order to show cause why
Melvin should not be held in contempt of court (Show Cause
Motion). We affirm the district court’s determination that
Melvin’s alimony obligation continued after Janette’s
remarriage. We conclude the court abused its discretion in
denying portions of the Show Cause Motion but not in
calculating Janette’s attorney fees award. We therefore affirm in
part, reverse in part, and remand for further proceedings
consistent with this opinion.
BACKGROUND
¶2 Janette and Melvin divorced in 2008, and a Decree
was entered pursuant to a mediated stipulation for divorce.
The Decree named Janette primary caregiver to the parties’
minor child and ordered Melvin to pay $3,000 per month in
child support until the child reached “the age of 26 or so long
as [the child remained] a college student, whichever occur[red]
later.” A child support obligation worksheet was attached to
the stipulation. In that worksheet, the parties acknowledged
that Janette’s child support award was greater than the
amount set by the statutory guidelines and indicated that the
reason for the upward deviation was the parties’ “property
settlement.”
¶3 The Decree ordered Melvin to pay “$2,000.00 per month
as alimony with a cost of living increase up to 3% per annum”
while child support continued. After child support terminated,
alimony would be “adjusted pursuant to the sum set forth
in ‘Exhibit C’ to the [parties’ stipulation], with a cost of living
increase of up to 3% per annum.” Exhibit C is a spreadsheet
that appears to summarize the payments and assets Janette
would receive under the stipulation. It lists yearly payments
from 2008 to 2039 (372 months) in each of the following
categories: (1) Alimony and Child Support, (2) Taxes on
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Alimony, (3) Health Insurance, (4) Car Allowance, (5) Utilities
and Property Taxes, and (6) House Maintenance. Exhibit C
also provides sums labeled “House Value,” “New Furniture,”
and “Personal Assets,” as well as a sum labeled “Total Net
Present Value.” The alimony and child support category
provides for a $5,000 payment in 2008, and the payment
increases each year until the final payment of $12,500.40 in 2039.
The Decree states that alimony will continue “until the first of
any of the following occurrences: [Melvin’s] death; [t]he
expiration of 372 months from the signing of the [Decree]; or
[Janette’s] death.”
¶4 The Decree ordered Melvin to purchase a $1,000,000
annuity for Janette within “[t]hirty-six months after the signing
of the [Decree].” Janette was “to be irrevocably designated as
the beneficiary of the annuity during her lifetime with the
power to designate any blood relative as the beneficiary of
any death benefit provided by the annuity” and was to dictate
a “payout duration in excess of fifteen years.” The Decree said
it was “anticipated that the annuity [would] provide a stream
of income to [Janette] for her lifetime sufficient to supplement
what [Melvin] pays as alimony.” In a footnote, the Decree
ordered Janette and Melvin to meet every three years “at
the Hyatt Regency, or comparable hotel, in San Diego,
California” “without spouses or attorneys” “to review their
respective standard of living.” To maintain an “equal” standard
of living, the footnote also permitted “an upward adjust[ment]
of alimony . . . , but never a downward adjustment.”
¶5 Next, the Decree “divided and awarded” the parties’
property and their “marital debts and obligations.” Janette was
awarded the parties’ marital house. The Decree ordered
Melvin to pay various expenses related to the house, and
those payments were listed in sub-paragraphs 18(a)–(g).
Sub-paragraph 18(a) ordered Melvin “to satisfy the monthly
payments owing on the first deed of trust,” and sub-paragraphs
18(b)–(g) ordered him to, among other things, pay the “real
20170956-CA 3 2019 UT App 147McQuarrie v. McQuarrie
property taxes and homeowner’s insurance” until the first
deed of trust was satisfied. But paragraph 21 provides, “Upon
[Melvin’s] purchase of the annuity . . . [his] responsibility for the
payments outlined in paragraph 18(b)–(g) is ordered to
cease and [his] obligation with respect to those items will be
at an end.” The Decree states that “[Melvin’s] payment of
the first deed of trust, the real property taxes, and the
homeowner’s insurance constitutes a part of the property
settlement.” Janette also received an award of “one-half of
[Melvin’s] 401(k) retirement benefits accrued during the parties’
marriage.”
¶6 As “part of the property settlement agreed upon by the
parties,” the Decree ordered Melvin to permanently “employ
[Janette] with one of his companies” and, as a benefit of that
employment, the company was required to “pay for [Janette’s]
health insurance premiums for as long as [she] require[d]
medical insurance.” The Decree also ordered Melvin to
“maintain medical insurance for the medical expenses of the
[parties’] minor child” and to “pay for the minor child’s
out-of-pocket costs” and “uninsured medical expenses.” The
Decree ordered that if Janette incurred “medical expenses on
behalf of the minor child,” she was to either “provide written
verification of the cost and payment of the medical expenses she
paid on the minor child’s behalf” to Melvin or make
arrangements “so that [Melvin] may be billed directly.”
Following the provisions dealing with medical insurance, the
Decree states that “[t]he payment of [Janette’s] health insurance
premiums and uncovered medical expenses constitute a portion
of the property settlement.”
¶7 Many of the Decree’s provisions mention Janette’s
potential remarriage, and the Decree provides that certain
obligations will terminate if she remarries. For example,
sub-paragraph 7(a) states that Melvin “shall not be responsible
for any medical premium, prescription, out of pocket, or co-pay
expense related to [Janette’s] future spouse, or spouse’s children.”
20170956-CA 4 2019 UT App 147McQuarrie v. McQuarrie
(Emphasis added.) Paragraph 11 allows Janette “to designate
any blood relative as the beneficiary of any death benefit
provided by the annuity,” but “in the event she remarries, she may
not designate her spouse or his children as beneficiaries.”
(Emphasis added.) Paragraph 28 provides, “In the event [Janette
was] unmarried, commencing in 2011, and every five years
thereafter so long as [Janette] remain[ed] single, [Melvin was]
ordered to purchase or lease for [her] . . . a model year 2012
Cadillac Escalade, or equivalent.” (Emphasis added.) Under
paragraph 19, “should [Janette] remarry,” Melvin shall “continue
to pay the first deed of trust until it is paid in full” but he will be
“relieved of any and all obligations to pay and maintain the
items in . . . sub-paragraphs 18(b)–(g).” (Emphasis added.)
Finally, paragraph 29 provides that the parties cannot divest
assets to a future spouse, and paragraph 30 prohibits the
disclosure of any settlement or of the terms of the Decree to
future spouses. The Decree does not contain a separate provision
addressing whether Melvin’s alimony obligation would
terminate or continue if Janette remarried.
¶8 Janette remarried in 2014. That year, she filed a petition to
modify the Decree (Petition to Modify) based on Melvin’s
alleged fraud. She claimed Melvin did not disclose certain assets
and “misrepresented the value of the marital home . . . for
purposes of inducing her to enter into the property settlement.”
Janette also filed the Show Cause Motion, asserting Melvin
should be held in contempt of court for, among other things,
failing to pay a cost of living increase on the alimony award,
Janette’s “uncovered” and “out-of-pocket medical expenses,”
and “one-half of [his] 401(k),” and for failing to purchase the
$1,000,000 annuity.
¶9 Melvin filed a counter-petition to modify
(Counter-petition). He asserted Janette’s remarriage constituted
“a substantial and material change in the parties’ circumstances”
that justified terminating his alimony obligation. Specifically, he
argued that alimony terminated as a matter of law upon Janette’s
20170956-CA 5 2019 UT App 147McQuarrie v. McQuarrie
remarriage because the Decree did not “specifically provide
otherwise.” See Utah Code Ann. § 30-3-5(9) (LexisNexis Supp.
2018) (“Unless a decree of divorce specifically provides
otherwise, any order of the court that a party pay alimony to a
former spouse automatically terminates upon the remarriage or
death of that former spouse.”).
¶10 After a hearing, a court commissioner entered a
recommendation on the Petition to Modify, the Show Cause
Motion, and the Counter-petition. To start, the commissioner
recommended denying Melvin’s request to terminate alimony.
The commissioner reasoned, “[A]lthough the decree does not
state alimony will not terminate upon remarriage, the Decree is
clear on its face considering all the other references to remarriage
in the other provisions . . . that the parties intended for alimony
to survive remarriage.”
¶11 Next, the commissioner addressed the Show Cause
Motion, beginning with the cost of living adjustment to alimony.
First, the commissioner concluded that the alimony provisions
established “a cost of living increase of up to 3% per annum (and
never downward),” but that the actual increase was “to be
determined by the Consumer Price Index [(CPI)].” Second, the
commissioner concluded “the Decree does not require [Melvin]
to pay for [Janette’s] out of pocket medical costs.” Third, the
commissioner found “the payment of half of [Melvin’s] 401(k)
account ha[d] been satisfied . . . by [Melvin’s] payment to
[Janette] in the amount of $8,885.52.” Fourth, because Melvin did
not purchase the annuity within thirty-six months of the entry of
the Decree, the commissioner recommended that Janette receive
“a judgment in an amount sufficient to compensate her for the
loss of the stream of income, past and future, from the ordered
annuity.” But if Melvin purchased “an annuity which pa[id]
$6,728.63 per month for 140 months,” the commissioner
concluded “his purchase of the annuity [would] satisfy the
judgment entered against him.” The commissioner also
concluded that Melvin should receive “credit against the annuity
20170956-CA 6 2019 UT App 147McQuarrie v. McQuarrie
judgment for payments he made . . . (that [Janette] would have
otherwise been paying herself out of the stream of income from
the annuity) . . . past the date that the annuity should have been
purchased.”
¶12 Janette filed an objection to the commissioner’s
recommendation. First, she claimed the cost of living adjustment
to alimony should “be a straight 3% each year,” regardless of
the CPI. Second, she asserted Melvin should not receive credits
against his annuity obligation for payments listed in sub-
paragraphs 18(b)–(g) of the Decree because those payments
“were to continue until [he] purchased the annuity—which he
did not do.” She objected to the recommended amount
for Melvin’s annuity obligation, claiming the written
recommendation differed from what the commissioner
orally recommended at the hearing. Third, she argued that
Melvin had not paid her half the value of his 401(k) account.
Fourth, she asserted Melvin should pay her out-of-pocket
medical expenses because “the Decree clearly states that
[Melvin’s] payment of [Janette’s] health insurance premiums and
uncovered medical expenses constitute a portion of the property
settlement.”
¶13 After a period of discovery, Janette filed a motion to limit
issues for trial. While that motion was pending, Melvin filed a
motion for partial summary judgment on his claim that alimony
terminated as a matter of law when Janette remarried because
the Decree did not “specifically provide otherwise.” The court
scheduled a hearing on the motion to limit issues for trial, and
the court commissioner scheduled a hearing on the motion for
partial summary judgment.
¶14 At the hearing on the motion to limit issues for trial, the
district court told the parties it wanted to “simply have a
discussion” about the case. It explained that the parties’
stipulation that “made the basis of the [Decree was] going to be
followed” and the only issue worth pursuing in the case was
20170956-CA 7 2019 UT App 147McQuarrie v. McQuarrie
“the possibility of the allegation of fraud.” The court determined
that alimony did not terminate upon Janette’s remarriage
because the Decree “could be fairly read and interpreted that the
parties either negotiated away—or clearly understood . . . what
those alimony provisions were.” And “[e]ven though they may
have been characterized as . . . alimony, when you look at the
way they were treated, . . . it clearly looks to be . . . that it was
a—in a way, a property settlement agreement.” The court also
said “you could interpret [the Decree] to read the parties
specified, clearly, the terms of—as it relates to the alimony and
waived, knowingly, the statutory benefit that they would have
had on the issue of remarriage.”
¶15 The court also expressed skepticism toward the merits
of the Petition to Modify. It said, “I don’t have any indications
of all the facts or the evidence, but I don’t see any fraud here.
Okay? There was negotiation and understanding with respect
to what the settlement agreement was.” But “[i]f there really
was two or three items left out of this property agreement,” the
court explained, “whether they were left out intentionally, on
purpose, [or] negligently, . . . fairness and equity would clearly
require that they be looked at.” Janette responded that she was
“willing to waive that claim altogether” and then said, “that
leaves us—there’s nothing else to decide . . . other than the issue
of fees.”
¶16 Melvin informed the court that a summary judgment
motion on “the issue of remarriage and the fact that the [Decree]
does not specifically provide that alimony doesn’t terminate
upon remarriage . . . [was] before the commissioner [the
following] week.” After acknowledging the commissioner’s
order determining that alimony did not terminate upon
remarriage—which was signed by the district court—Melvin
said he would “like to have [the commissioner] have the
opportunity to make a recommendation” with “the benefit of the
[new] briefing that’s involved . . . [and] there are several more
recent Utah Court of Appeals and Supreme Court cases that bear
20170956-CA 8 2019 UT App 147McQuarrie v. McQuarrie
on the issue.” The court responded, “If you want to try to get a
second bite at the apple and convince [the commissioner], that’s
fine.”
¶17 But the court concluded that it was “ready to issue an
order of dismissal” 2 and saw no “need to set trial,” and turned
to address Janette’s request for attorney fees. The court
determined she was entitled to fees “that relate to the
enforcement in the first place and the requirement for [Melvin]
to give the annuity and to comply with the other terms and
provisions” of the Decree. Specifically, the court found that
Janette was the prevailing party on the Show Cause Motion,
explaining that “the hearings brought up such quick decisions . .
. [b]ecause [Melvin] was not in compliance with the [Decree].”
But the court said it would view other fees “with some
skepticism” because both parties “lost on [their petitions to
modify] with respect to not being able to prove a substantial
material change in circumstances.”
¶18 Although the district court dismissed the case, the court
commissioner nevertheless held a hearing on Melvin’s motion
for partial summary judgment and recommended that the
motion be denied. Melvin filed an objection to the
commissioner’s recommendation, asserting again that Utah
Code section 30-3-5(9) required termination of his alimony
obligation. The court rejected Melvin’s objection to the
recommendation and entered an order denying his motion for
summary judgment.
2. We are puzzled by this “dismissal.” What began as a pre-trial
hearing appears to have resulted in the court’s dismissal of both
petitions to modify. In Janette’s case, this appears to have been
because she waived the basis for the Petition to Modify at the
hearing on the motion to limit issues; in Melvin’s case, the
dismissal ruling was made even though a motion for partial
summary judgment was still pending.
20170956-CA 9 2019 UT App 147McQuarrie v. McQuarrie
¶19 The court then entered an order memorializing its verbal
dismissal of the Petition to Modify and the Counter-petition. It
found “that the Stipulation and Decree between the parties
[would] be followed as written.” And after reviewing “all the
language in the Decree,” it concluded the alimony provisions
“were not something that would be terminated or eliminated
based upon the remarriage of [Janette].” That is, it found “that
the Decree language specifically provides that the alimony/child
support payments would continue beyond remarriage and were
structured to provide the appropriate division of the marital
assets to [Janette].” The order also stated the court would
“award [Janette’s] attorney’s fees regarding her attempts to
enforce the Decree’s terms” and requested that Janette “submit
the required affidavit on [her] attorney’s fees.”
¶20 After the petitions had been dismissed, Janette filed a
request to submit for decision her objection to the
commissioner’s recommendation on the Show Cause Motion.
The court denied Janette’s objection. It explained, “[T]he
recommendation signed by the commissioner and the court is
the order that will be complied with by the parties as the court
has not found the commissioner erred as a matter of law and the
court independently agrees with the decision made by the
commissioner.”
¶21 Janette submitted an attorney fees declaration that
claimed she incurred $302,602 in attorney fees throughout the
case with $275,659 “incurred in [her] efforts to enforce the terms
of the [Decree]” and $61,448 relating “to the prosecution of [the
Show Cause Motion].” Janette then filed a proposed order with
an award of $275,659 in attorney fees. The court responded with
a notice titled “Not Signed Order (Proposed) Awarding
Attorney Fees and Costs.” The notice stated that “the only fees
that [would] be awarded [were] those the court already so stated
for the [Show Cause Motion].” Janette then filed a second
proposed order with an award of $61,448 in attorney fees. Again,
the court refused to sign the proposed order and noted, “These
20170956-CA 10 2019 UT App 147McQuarrie v. McQuarrie
fees are not reasonable for an [order to show cause] hearing
before the commissioner and then the court.[3] The court will
issue a ruling on the amount to be awarded.”
¶22 The court entered an order awarding Janette $9,480 in
attorney fees. The order provided, “While both parties prevailed
on some issues and were less successful on others, [Janette] was
the prevailing party in relation to the prosecution of [the Show
Cause Motion].” And “having conducted a review of the entries
attached to the [attorney fees affidavit],” the court concluded
that $9,480 “incurred in fees was reasonable and necessary in
relation to the prosecution of the [Show Cause Motion].”
¶23 Melvin appeals; Janette cross-appeals.
ISSUES AND STANDARDS OF REVIEW
¶24 Melvin argues the district court erred in determining that
his alimony obligation survived Janette’s remarriage. This issue
requires us to review the court’s interpretation of the Decree as
well as its interpretation and application of Utah Code section
30-3-5(9). “Interpretation of a divorce decree presents a question
of law, which is reviewed for correctness.” Gardner v. Gardner,
2012 UT App 374, ¶ 14, 294 P.3d 600. “The proper interpretation
and application of a statute is [also] a question of law which we
review for correctness.” Veysey v. Veysey, 2014 UT App 264, ¶ 7,
339 P.3d 131 (quotation simplified). 4
3. Again, we are puzzled. Our review of the record suggests that
there was no show cause hearing before the district court.
4. Melvin also argues the district court denied him “the right to
adequate notice and a fair hearing on the issues he presented” by
dismissing the Counter-petition. This issue was not preserved
for appeal. To preserve an issue for appeal, a party must
(continued…)
20170956-CA 11 2019 UT App 147McQuarrie v. McQuarrie
¶25 Janette cross-appeals, raising two issues. First, she argues
“the district court erred in denying portions of [the Show Cause
Motion]” by misinterpreting and misapplying the Decree. “An
order relating to contempt of court is a matter that rests within
the sound discretion of the district court.” Wolferts v. Wolferts,
2013 UT App 235, ¶ 8, 315 P.3d 448 (quotation simplified). “In
the absence of any action by the [district] court which is so
unreasonable as to be classified as capricious and arbitrary, or a
clear abuse of discretion, we will not overturn the [district]
court’s order.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d
539 (quotation simplified). “We review the district court’s
findings of fact for clear error and its legal determinations for
correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385
P.3d 689 (quotation simplified).
(…continued)
specifically and timely raise the issue before the district court
and “introduce supporting evidence or relevant legal authority.”
O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704 (quotation
simplified). A review of the record reveals that Melvin did not
present his due process argument to the district court, and
therefore the court “did not have the opportunity to give full
consideration to the issue[] at that time.” See id. ¶ 19. Further,
Melvin’s principal appellate brief does not assert an exception to
the preservation rule, and only in his reply brief does he argue
“the [district] court committed plain error and the circumstances
are exceptional.” Because Melvin has “not argued an exception
to our preservation requirement to persuade us to reach” this
issue, we do not consider it further. See True v. Utah Dep’t of
Transp., 2018 UT App 86, ¶ 22, 427 P.3d 338; see also Marcroft v.
Labor Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164 (“[W]e have
consistently refused to consider arguments of plain error raised
for the first time in an appellant’s reply brief, even if the plain
error argument is in response to a dispute over preservation
raised for the first time in the appellee’s brief.” (quotation
simplified)).
20170956-CA 12 2019 UT App 147McQuarrie v. McQuarrie
¶26 Second, Janette argues the district court erred in awarding
her only $9,480 in attorney fees. “We review a [district] court’s
decision regarding attorney fees in a divorce proceeding for an
abuse of discretion.” Jensen v. Jensen, 2008 UT App 392, ¶ 8, 197
P.3d 117.
ANALYSIS
I. Alimony
¶27 Melvin argues his alimony obligation automatically
terminated upon Janette’s remarriage because the Decree did not
“specifically provide otherwise.” See Utah Code Ann. § 30-3-5(9)
(LexisNexis Supp. 2018). We disagree.
¶28 “Alimony is presumed to terminate upon the remarriage
of the receiving spouse.” Johnson v. Johnson, 855 P.2d 250, 252
(Utah Ct. App. 1993). Utah courts have long recognized this
presumption, see, e.g., Austad v. Austad, 269 P.2d 284, 290 (Utah
1954) (“[T]here is implicit in the divorce decree the provision
that the alimony continues only so long as the [receiving spouse]
remains unmarried.”), and it is now codified in Utah Code
section 30-3-5(9). That provision provides, “Unless a decree of
divorce specifically provides otherwise, any order of the court
that a party pay alimony to a former spouse automatically
terminates upon the remarriage or death of that former spouse.”
Utah Code Ann. § 30-3-5(9).
¶29 Here, the Decree was entered by default “pursuant to the
terms set forth in” Melvin and Janette’s “mediated stipulation
for divorce.” “[I]n the context of a divorce, parties are generally
bound by their stipulations.” Thayer v. Thayer, 2016 UT App 146,
¶ 17, 378 P.3d 1232. “Accordingly, we interpret [the Decree]
according to established rules of contract interpretation.” Id.(quotation simplified). “The underlying purpose in interpreting
a contract is to ascertain the intentions of the parties to the
20170956-CA 13 2019 UT App 147McQuarrie v. McQuarrie
contract.” Id. (quotation simplified). To do that, “we look to the
plain meaning of the contractual language, and we consider each
contract provision in relation to all of the others, with a view
toward giving effect to all and ignoring none.” Id. (quotation
simplified).
¶30 The Decree does not identify Janette’s remarriage as
an event that will terminate Melvin’s obligation to pay
alimony. Instead, paragraph 10 orders Melvin to make alimony
payments “until the first of any of the following occurrences:
[Melvin’s] death; [t]he expiration of 372 months from the signing
of the [Decree]; or [Janette’s] death.” As Janette notes in her brief,
“‘the specification of terms in a contract implies the exclusion of
all not expressed.’” (Quoting 17A C.J.S. Contracts § 415.) And
absent the statute, we would infer that the parties intended
alimony to survive Janette’s remarriage based on their
decision to omit remarriage from paragraph 10’s list of
terminating events. See Martin v. Rasmussen, 2014 UT App 200,
¶ 18, 334 P.3d 507 (“This court will not rewrite a contract
to supply terms which the parties omitted.” (quotation
simplified)). But our precedent establishes that paragraph 10,
without more, does “not provide for an exception to the general
rule.” See Lord v. Shaw, 682 P.2d 853, 855 (Utah 1984)
(determining that a divorce decree stating “alimony is to run for
a period of three years” did “not provide for an exception to the
general rule that alimony terminates upon remarriage”),
disavowed on other grounds by Bailey v. Sound Lab, Inc., 694 P.2d
1043 (Utah 1984); see also Eames v. Eames, 735 P.2d 395, 398–99
(Utah Ct. App. 1987) (Orme, J., dissenting in part) (rejecting the
“frivolous” argument that language in a divorce decree
providing “alimony would continue until [the receiving party]
reached 65” without referring to “earlier termination upon . . .
remarriage” “might be deemed to mean the decree had
‘specifically provided otherwise’ and required alimony to be
paid until age 65 regardless of whether [the receiving party]
remarried” (quotation simplified)).
20170956-CA 14 2019 UT App 147McQuarrie v. McQuarrie
¶31 Nevertheless, our analysis must consider paragraph 10
“in relation to” each of the Decree’s other provisions, “with a
view toward giving effect to all and ignoring none.” See Thayer,
2016 UT App 146, ¶ 17 (quotation simplified). And based on our
review of the Decree “as a whole,” we conclude that its language
specifically provides that alimony would survive Janette’s
remarriage. See id. For example, paragraphs 19 and 28 state that
certain payments—the car allowance and various expenses
related to the marital house—would terminate upon Janette’s
remarriage. These provisions strengthen an inference that the
parties intentionally omitted remarriage from paragraph 10.
¶32 We also find it significant that paragraph 10 includes
Janette’s death as a terminating event. The statute creates a
presumption that alimony “terminates upon the remarriage or
death” of the receiving spouse. Utah Code Ann. § 30-3-5(9)
(emphasis added). If the parties intended alimony to terminate
either upon Janette’s death or remarriage, the reasonable action
would have been to allow the statute to govern either event or
include them both in paragraph 10. Indeed, listing Janette’s
death as a terminating event would have been unnecessary
under those circumstances, and it seems the parties’ decision to
do so would be rendered meaningless if we were to conclude
that alimony also terminated upon Janette’s remarriage. The
rules of contract interpretation dictate that we avoid such a
result. See Fisher v. Davidhizar, 2018 UT App 153, ¶ 16, 436 P.3d
123 (“In interpreting a contract, . . . we look for a reading that
harmonizes the provisions and avoids rendering any provision
meaningless.” (quotation simplified)).
¶33 Further, footnote 4 orders Melvin and Janette to meet
every three years—without spouses—“to review their respective
standard of living” and potentially adjust alimony upward to
comply with the order that “the standard of living . . . be equal.”
(Emphasis added.) The same footnote prohibits Janette and
Melvin from “sharing any documentation or making any
disclosure regarding the [parties’ stipulation] with future
20170956-CA 15 2019 UT App 147McQuarrie v. McQuarrie
spouses,[5] [or] spouses’ children.” (Emphasis added.) We cannot
ignore this provision, which orders the parties to discuss and
potentially adjust alimony even after Janette’s potential
remarriage.
¶34 Melvin attempts to diminish footnote 4’s significance by
claiming our interpretation “requires [us] to assume that one of
the spouses would be [Janette’s] spouse.” That is, he asserts “it is
equally logical that over a period of more than thirty years
[Melvin] might remarry more than once and thus have
[multiple] spouses who would be excluded from the meeting or
from knowledge of the negotiations.” This argument is not well
taken. Although Melvin possibly could have a current spouse as
well as multiple former spouses at the time of the triennial
review, we do not assume that the parties anticipated Melvin
having multiple spouses at the same time. Instead, the only
reasonable interpretation of this provision establishes that the
spouse of each party who is married at the time of the review is
prohibited from attending. And because footnote 4 contemplates
the parties discussing alimony during the triennial review, it
shows a clear intent that those payments would not terminate
upon Janette’s remarriage. Moreover, any other interpretation
would render this provision meaningless.
¶35 As outlined above, see supra ¶ 7, the Decree is replete with
references to future spouses. The Decree’s provisions delineate
obligations, but they expressly exclude a future spouse or that
spouse’s children. Janette is allowed to designate a beneficiary
for a required annuity, but she expressly may not designate a
future spouse or that spouse’s children. The requirement for
Melvin to pay off the marital house’s mortgage continues even if
Janette remarries. Finally, the Decree prohibits divestiture of
assets or the disclosure of the terms of the Decree to a future
5. “Spouse” is defined as “[o]ne’s husband or wife by lawful
marriage.” Spouse, Black’s Law Dictionary 1533 (9th ed. 2009).
20170956-CA 16 2019 UT App 147McQuarrie v. McQuarrie
spouse. These provisions lead us to conclude that the parties
considered Janette’s potential remarriage and specifically agreed
on how that event would affect their respective rights and
obligations under the Decree. Accordingly, the only
“reasonable” interpretation of the Decree as a whole is that
alimony terminates only as expressly provided in paragraph 10.
See Peirce v. Peirce, 2000 UT 7, ¶ 19, 994 P.2d 193 (“[W]e interpret
the terms of a contract in light of the reasonable expectations of
the parties, looking to the agreement as a whole and to the
circumstances, nature, and purpose of the contract.” (emphasis
added)).
¶36 Therefore, we conclude that Melvin’s alimony obligation
did not automatically terminate upon Janette’s remarriage,
because the Decree “specifically provides otherwise,” Utah Code
Ann. § 30-3-5(9), and we affirm the district court’s dismissal of
Melvin’s petition to terminate alimony.
II. Show Cause Motion
¶37 The Show Cause Motion asked the district court to hold
Melvin in contempt of court for not complying with various
provisions of the Decree. Janette argues the court “erred in
denying portions of [the Show Cause Motion] because it failed to
interpret and give the terms of the Decree the effect the plain
language called for.”
¶38 “Disobedience of any lawful judgment or order of the
court is contempt of the authority of the court.” Clarke v. Clarke,
2012 UT App 328, ¶ 24, 292 P.3d 76 (quotation simplified); see
also Utah Code Ann. § 78B-6-301(5) (LexisNexis 2018). To “prove
contempt for failure to comply with a court order it must be
shown that the person cited for contempt knew what was
required, had the ability to comply, and intentionally failed or
refused to do so.” Clark, 2012 UT App 328, ¶ 24 (quotation
simplified). “Once the court finds a person in contempt, it may
then elect to impose an appropriate sanction.” Gardner v.
20170956-CA 17 2019 UT App 147McQuarrie v. McQuarrie
Gardner, 2012 UT App 374, ¶ 32, 294 P.3d 600. An appropriate
sanction may include monetary damages “if an actual loss or
injury to a party in an action is caused by the contempt.” In re
Cannatella, 2006 UT App 89, ¶ 7, 132 P.3d 684 (quotation
simplified).
¶39 “The rule of damages in a contempt case is the same as if
the party were being proceeded against directly on the
underlying obligation.” Bradshaw v. Kershaw, 627 P.2d 528, 532
(Utah 1981). The court’s order should seek to compensate the
aggrieved party for the “actual loss or injury” caused by the
contempt. Utah Code Ann. § 78B-6-311(1) (allowing courts to
“order the person proceeded against to pay the party aggrieved
a sum of money sufficient to indemnify and satisfy the aggrieved
party’s costs and expenses”); see also Goggin v. Goggin, 2013 UT
16, ¶ 37, 299 P.3d 1079 (“Because these awards compensated [the
aggrieved party] for the actual loss or injury that [the contempt]
caused, they were proper under the Contempt Statute.”
(quotation simplified)). Further, the court’s calculation of
damages should be supported by evidence of the aggrieved
party’s loss. See Valerios Corp. v. Macias, 2015 UT App 4, ¶ 24, 342
P.3d 1127 (explaining that the evidence must “provide a
reasonable, even though not necessarily precise, estimate of
damages” (quotation simplified)).
¶40 Janette raises four issues regarding the Show Cause
Motion. First, she challenges the court’s conclusion that Melvin
was not required “to pay [her] out of pocket medical expenses.”
Second, she claims the court erred in determining that the yearly
cost of living increase to Melvin’s alimony obligation “could be
less than 3%.” Third, she contends the court provided Melvin
with a “windfall” by not requiring him to purchase an annuity
that complied with “the terms of the annuity [he] was obligated
to purchase” and by awarding him credit against the annuity
judgment to which he was not entitled. Fourth, she argues the
court erred in determining “Melvin satisfied his obligation to
pay [her] half of his 401(k).” We address each argument in turn.
20170956-CA 18 2019 UT App 147McQuarrie v. McQuarrie
A. Out-of-Pocket Medical Costs
¶41 In the Show Cause Motion, Janette moved the district
court to hold Melvin in contempt for refusing to “pay for all
of [her] uncovered medical expenses.” The court denied her
motion after determining the Decree did not require Melvin to
make any such payment. Janette argues the court’s decision was
“contrary to the Decree’s plain and unambiguous language.” We
disagree.
¶42 “We interpret a divorce decree according to established
rules of contract interpretation.” Moon v. Moon, 1999 UT App 12,
¶ 18, 973 P.2d 431 (quotation simplified). “The underlying
purpose in interpreting a contract is to ascertain the intentions of
the parties to the contract. To ascertain the parties’ intentions, we
look to the plain meaning of the contractual language, and we
consider each contract provision in relation to all of the others.”
Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation
simplified).
¶43 A review of the Decree “as a whole” leads us to conclude
that Melvin was not required to pay for Janette’s personal
out-of-pocket medical costs. Paragraph 7 of the Decree orders
Melvin to employ Janette with one of his companies and
requires that company to “pay for [her] health insurance
premiums for so long as [she] requires medical insurance.”
Paragraph 7 does not state that Melvin must pay any of
Janette’s out-of-pocket costs. In contrast, paragraph 6 orders
Melvin to “maintain medical insurance for the medical
expenses of the [parties’] minor child . . . through [his]
employment” and “pay for the minor child’s out-of-pocket costs of
the premium for the child’s portion of the insurance.” (Emphasis
added.) Paragraph 6 also requires Melvin to “pay for the minor
child’s reasonable and necessary uninsured medical expenses,
including deductibles and co-payments, incurred for the parties’
minor child.” (Emphasis added.) Under sub-paragraph 6(a),
Janette must provide Melvin with written verification of any
20170956-CA 19 2019 UT App 147McQuarrie v. McQuarrie
medical expenses “[she] incurs on behalf of the minor child . . .
within 30 days of payment” or make arrangements “so that
[Melvin] may be billed directly.” Janette’s argument relies on
sub-paragraph 7(b), which provides that “[t]he payment of
[Janette’s] health insurance premiums and uncovered medical
expenses constitute a portion of the property settlement.”
(Emphasis added.)
¶44 Because the Decree includes the child’s out-of-pocket
costs in paragraph 6 and omits Janette’s out-of-pocket costs
from paragraph 7, it seems the parties intended that Melvin
be responsible only for the out-of-pocket medical expenses
incurred for the child’s benefit—not those incurred for
the benefit of Janette. See Fisher v. Davidhizar, 2018 UT App 153,
¶ 16, 436 P.3d 123 (explaining that “we look for a reading
that harmonizes the provisions and avoids rendering any
provision meaningless” (quotation simplified)). If the parties
intended to require Melvin to pay Janette’s out-of-pocket
medical costs, they would have expressed such intent in
paragraph 7. Pioneer Builders Co. of Nevada Inc. v. K D A Corp.,
2018 UT App 206, ¶ 13, 437 P.3d 539 (“The cardinal rule in
contract interpretation is to give effect to the intentions of
the parties as they are expressed in the plain language of
the agreement itself.” (quotation simplified)). Sub-paragraph
7(b) does not alter the result. The only “uncovered medical
expenses” the Decree orders Melvin to pay are those incurred
on behalf of the child. Thus, we see no reason to conclude
that Janette’s personal out-of-pocket expenses were meant to
be included among the expenses mentioned in sub-paragraph
7(b).
¶45 In sum, we reject Janette’s argument that “the Decree’s
plain and unambiguous language” requires Melvin to pay
Janette’s own uncovered medical expenses. Accordingly, we
affirm the district court’s decision to deny Janette’s motion to
hold Melvin in contempt for refusing to pay for those costs.
20170956-CA 20 2019 UT App 147McQuarrie v. McQuarrie
B. Annual Adjustments to Alimony
¶46 Janette argues the district court erred in determining that
the yearly cost of living increase to Melvin’s alimony obligation
“could be less than 3%.” We disagree. The Decree orders Melvin
to pay alimony, “with a cost of living increase of up to 3% per
annum (based upon the CPI, but never to be less than the
present amount being paid).” (Emphasis added.) This
unambiguous language does not support Janette’s argument that
the yearly increase must be at least 3%. See Brady v. Park, 2019 UT
16, ¶ 53, 445 P.3d 395 (“If the language within the four corners of
the contract is unambiguous, the parties’ intentions are
determined from the plain meaning of the contractual
language.” (quotation simplified)). That is, stating that the
increase will be up to 3% leaves open the possibility that the
increase may be lower than 3%. Janette argues that Exhibit C
to the parties’ stipulation shows that alimony was to increase
at a fixed rate of 3% per year because the yearly payments
for “Alimony/Child Support” listed on Exhibit C increase by
3% each year. But the Decree is clear. It sets a flexible standard
for the yearly increase to allow the parties to “equalize” their
respective standards of living. For example, footnote 4 allows the
parties to “include an upward adjustment to alimony beyond the
CPI.” Thus, the amounts listed in Exhibit C are merely estimates.
¶47 In short, we see no support for Janette’s contention that
the yearly increase to alimony must be at least “a flat 3% per
year.” Accordingly, the court’s “interpretation of the [Decree]
was [not] erroneous as a matter of law,” and Janette has
therefore failed to “convince us that the [district] court
committed error.” See Christensen v. Christensen, 2018 UT App 53,
¶ 5, 420 P.3d 106 (quotation simplified).
C. Melvin’s Annuity Obligation
¶48 The Decree ordered Melvin to purchase Janette a
$1,000,000 annuity within thirty-six months of the entry of the
20170956-CA 21 2019 UT App 147McQuarrie v. McQuarrie
Decree. It is undisputed that Melvin did not purchase the
annuity within that period. Accordingly, the district court
entered a judgment against Melvin “in an amount sufficient
to compensate [Janette] for the loss of the stream of income,
past and future, from the ordered annuity.” The order allowed
Melvin to “satisfy the judgment entered against him” by
purchasing “an annuity which pays $6,728.63 per month for 140
months.” The court also awarded Melvin “credit against
the annuity judgment for payments he made to [Janette] for
[her] benefit (that [she] would have otherwise been paying
herself out of the stream of income from the annuity) past the
date that the annuity should have been purchased.”
¶49 Janette argues the court abused its discretion by not
requiring Melvin to purchase an annuity that complied with
“the terms of the annuity [he] was obligated to purchase” and
by awarding him credit against the annuity judgment to
which he was not entitled. This argument has merit. Because the
evidence does not support the district court’s order, see
Valerios Corp. v. Macias, 2015 UT App 4, ¶ 24, 342 P.3d 1127(explaining that the evidence must “provide a reasonable, even
though not necessarily precise, estimate of damages” (quotation
simplified)), and does not compensate Janette for the “actual loss
or injury” that Melvin caused her by failing to timely purchase
the annuity, see Utah Code Ann. § 78B-6-311(1) (LexisNexis 2018)
(allowing courts to “order the person proceeded against to
pay the party aggrieved a sum of money sufficient to
indemnify and satisfy the aggrieved party’s costs and
expenses”), we conclude the court’s ruling amounted to an abuse
of discretion.
¶50 First, the evidence does not support the court’s decision to
award Melvin “credits toward the annuity price” for making the
payments listed in sub-paragraphs 18(b)–(g) “past the date that
the annuity should have been purchased.” Sub-paragraphs
18(b)–(g) ordered Melvin to pay various expenses related to the
marital house. But paragraph 21 states, “Upon [Melvin’s]
20170956-CA 22 2019 UT App 147McQuarrie v. McQuarrie
purchase of the annuity . . . , [his] responsibility for the payments
outlined in paragraph 18(b)–(g) is ordered to cease.” Thus,
Melvin was obligated to make the payments listed in
sub-paragraph 18(b)–(g) until he purchased the annuity. Because
it is undisputed that Melvin did not timely purchase the annuity,
it follows that his obligation to make those payments did not
“cease” at the time the annuity should have been purchased.
Accordingly, we see no evidentiary basis for the court’s decision
to grant Melvin credit against the annuity judgment for
payments made under sub-paragraphs 18(b)–(g) “past the date
the annuity should have been purchased.” And we conclude that
doing so amounted to an abuse of discretion. See Gardner v.
Gardner, 2012 UT App 374, ¶ 33, 294 P.3d 600 (“[A]ny award of
damages must be based on something more than mere
speculation.”).
¶51 Second, we agree with Janette that the district court
abused its discretion by allowing Melvin to satisfy the judgment
against him by purchasing an annuity that (1) did not list Janette
as the irrevocable beneficiary, (2) had a term fewer than fifteen
years, (3) was less than the face value of the annuity he was
obligated to purchase under the Decree, and (4) did not account
for the loss in value Janette incurred by Melvin failing to
purchase the annuity in a timely fashion. Although the court
concluded Janette was entitled to “a judgment in an amount
sufficient to compensate her for the loss of the stream of income,
past and future, from the ordered annuity,” its order allowed
Melvin to satisfy that judgment without compensating Janette
for the “actual loss or injury” that resulted from him not
fulfilling his obligations under the Decree. See Utah Code Ann.
§ 78B-6-311(1).
¶52 The Decree ordered Melvin to purchase an annuity of
$1,000,000 and required its “payout duration” to be “in excess of
fifteen years.” Further, Janette was to “be irrevocably designated
as the beneficiary of the annuity during her lifetime with the
power to designate any blood relative as the beneficiary of any
20170956-CA 23 2019 UT App 147McQuarrie v. McQuarrie
death benefit provided by the annuity.” In direct conflict
with those terms, the court’s order allowed Melvin to “satisfy
the judgment entered against him for the annuity” by
purchasing “an annuity which pays $6,728.63 per month for 140
months”—a total of $942,008 paid over a period of less than
twelve years. Further, the order did not satisfy the Decree’s
requirement that Janette “be irrevocably designated as the
beneficiary of the annuity.” Accordingly, we see no evidentiary
basis for the court’s order, and we agree with Janette that the
court abused its discretion by allowing Melvin a “windfall as a
result of his own breach.” See Valerios Corp., 2015 UT App 4, ¶ 24
(explaining that the evidence must “provide a reasonable, even
though not necessarily precise, estimate of damages” (quotation
simplified)).
¶53 Because we see no evidence supporting the court’s
calculation of damages for Melvin’s failure to timely purchase
the annuity, we conclude its actions amount to “a clear abuse of
discretion.” Gardner, 2012 UT App 374, ¶ 14 (quotation
simplified). Accordingly, we reverse its order and remand for
further proceedings. On remand, the court should enter a
judgment against Melvin that adequately compensates Janette
for the “actual loss or injury” caused by Melvin’s failure to
purchase the annuity within thirty-six months after the Decree
was entered. See Utah Code Ann. § 78B-6-311(1).
D. 401(k)
¶54 Janette argues the district court erred in determining that
Melvin had “satisfied his obligation to pay [Janette] half of his
401(k).” We are not persuaded.
¶55 The Decree awarded Janette “one-half of [Melvin’s] 401(k)
retirement benefits accrued during the parties’ marriage.”
Paragraph 16 provided for an “appropriate Qualified Domestic
20170956-CA 24 2019 UT App 147McQuarrie v. McQuarrie
Relations Order[6] securing [Janette’s] interest in said retirement
plan,” but Melvin was “ordered to try and have the account
divided equally without the necessity of a QDRO.” In its
recommendation, the court commissioner found that “the
payment of half of [Melvin’s] 401(k) account ha[d] been
satisfied . . . by [his] payment to [Janette] in the amount of
$8,885.52.” The district court approved the commissioner’s
determination.
¶56 Janette challenges the court’s decision. She starts by
claiming Melvin’s “401(k) had a balance of $37,612.62” when the
Decree was entered on November 21, 2008. According to Janette,
Melvin “waited until February 20, 2009, to liquidate the
account”—about three months after the Decree was entered—
when “the account’s balance had allegedly dropped from
$37,612.62 to approximately $17,771.04.” Janette then argues that
because the Decree ordered Melvin to pay her one-half of the
account’s balance when the Decree was entered (which she
claims was $18,803.31), she was entitled to “a judgment against
[Melvin] in the amount of $9,922.79; i.e., the difference between
the amount received and half of the account’s balance when the
Decree was entered.”
¶57 Janette has failed “to carry [her] burden of persuasion on
appeal.” See Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d
196 (quotation simplified). First, the record does not support
Janette’s assertion that the 401(k)’s balance was $37,612.62 when
the Decree was entered. Her brief cites an account summary for
the period of October 1, 2008, through December 31, 2008, that
lists a “total value” of $37,612.62 on October 1, 2008, and a “total
value” of $28,904.27 on December 31, 2008. But because the
6. “A qualified domestic relations order [(QDRO)] instructs the
trustee of a retirement plan and specifies how distributions
should be made, to whom, and when.” Potts v. Potts, 2018 UT
App 169, ¶ 1 n.2, 436 P.3d 263 (quotation simplified).
20170956-CA 25 2019 UT App 147McQuarrie v. McQuarrie
Decree was not entered until November 28, 2008, the account
summary does not reveal the account’s balance at the time the
Decree was entered. The account summary supports the district
court’s finding that the balance was declining because “the
market had tanked,” and it shows that the “total value” of the
401(k) when the Decree was entered was likely between
$37,612.62 (value as of October 1) and $28,904.27 (value as of
December 31). Further, the account summary divides the “total
value” into two categories: “employee money” and “employer
money.” It states that the “employer account balance may not
[have been] 100% vested” and “if [Melvin] terminate[d]
employment, [he] might not [have] receive[d] all of the money
[his] employer [had] contributed to the plan.” The “employee
money” was $28,173 on October 1, 2008, and $21,650.32 on
December 31, 2008. Accordingly, the record shows that the
amount of “employee money” in Melvin’s 401(k) when the
Decree was entered was between $21,650.32 and $28,173; not, as
Janette claims, $37,612.62.
¶58 Second, Janette has not convinced us that the court
abused its discretion in concluding that Melvin satisfied his
obligation to pay her half of the 401(k) with the $8,885.52
payment. Below, Melvin argued that “due to the rapidly
declining value of the mutual funds in which the 401(k) was
invested, the parties agreed to try and divide the account equally
without the necessity of a QDRO by liquidating the account.”
And he asserted that when the 401(k) was liquidated, “a direct
deposit was made into [his] account in the amount of
$18,421.13.” He “paid the mandatory 10% penalty of $1,842
which yielded a balance of $8,289.52 each.” Thus, Melvin
claimed that he actually “over-paid Janette by $595.95” because
she received $8,885.52 when “[her] one-half of the 401(k) was
only $8,289.57.”
¶59 The court commissioner accepted Melvin’s argument,
finding that Melvin “took the check that he got” for “the reduced
value of the 401(k) after the market had tanked, divided that in
20170956-CA 26 2019 UT App 147McQuarrie v. McQuarrie
half, and gave half of the remaining value to [Janette].” The
commissioner even found that Melvin paid “some taxes on—on
the withdrawal, but those were not taken out of [Janette’s]
share.” Based on those findings, the commissioner concluded
that Janette had “been made whole by [Melvin] paying her
[$8,885.52].” Janette has not shown that this conclusion was in
error. As far as we can tell, Melvin complied with the Decree’s
order to divide the 401(k) equally between the parties by
liquidating the account and paying Janette half of what he
received.
¶60 We conclude that the court’s order was not “so
unreasonable as to be classified as capricious and arbitrary, or a
clear abuse of discretion,” Dansie v. Dansie, 1999 UT App 92, ¶ 6,
977 P.2d 539 (quotation simplified), and we affirm the court’s
determination that Melvin satisfied his obligation to pay Janette
one-half of his 401(k) benefits accrued during the parties’
marriage.
III. Attorney Fees
¶61 Janette argues “the district court erred by arbitrarily
reducing [her] attorney fee award.” We disagree.
¶62 “Utah Code section 30-3-3(2) authorizes an award of costs
and attorney fees ‘in any action to enforce an order of custody,
parent-time, child support, alimony, or division of property in a
domestic case’ upon the court’s determination ‘that the party
substantially prevailed upon the claim or defense.’” Wollsieffer v.
Wollsieffer, 2019 UT App 99, ¶ 13 (quoting Utah Code Ann.
§ 30-3-3(2) (LexisNexis Supp. 2018)). Fees awarded under section
30-3-3(2) “serve no equalizing function but allow the moving
party to collect fees unnecessarily incurred due to the other
party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶ 30,
233 P.3d 836. “In other words, when one party refuses to comply
with a court order, thereby compelling another party to seek its
enforcement, that party risks liability for the fees and costs
20170956-CA 27 2019 UT App 147McQuarrie v. McQuarrie
accrued in the enforcement proceeding.” Wollsieffer, 2019 UT
App 99, ¶ 13.
¶63 “Both the decision to award attorney fees and the amount
of such fees are within the [district] court’s sound discretion.”
Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 10, 176 P.3d 476(quotation simplified). But in fixing the amount of reasonable
fees, the court should consider (1) the legal work “actually
performed,” (2) the amount of work that was “reasonably
necessary to adequately prosecute the matter,” (3) whether the
attorney’s billing rate is “consistent with the rates customarily
charged in the locality for similar services,” and (4) any
“circumstances which require consideration of additional
factors.” Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah
1988).
¶64 Here, the district court awarded Janette attorney fees
“regarding her attempts to enforce the Decree’s terms” and said,
“While both parties prevailed on some issues and were less
successful on others, [Janette] was the prevailing party in
relation to the prosecution of [the Show Cause Motion].” The
court explained further that the Show Cause Motion “brought
up such quick decisions . . . [b]ecause [Melvin] was not in
compliance with the [D]ecree.” We see no abuse of discretion in
the district court’s decision to award attorney fees to Janette only
for her efforts to prosecute the Show Cause Motion. See Neff v.
Neff, 2011 UT 6, ¶¶ 70–71, 247 P.3d 380 (explaining that a court’s
“decision about who prevailed” should be “based on an
approach that [is] flexible and reasoned” and highlighting “the
importance of . . . common sense”). In prosecuting that motion,
Janette successfully enforced the Decree by showing that Melvin
failed to timely purchase the annuity. Thus, it was reasonable for
the court to award her attorney fees “accrued in [that]
enforcement proceeding.” See Wollsieffer, 2019 UT App 99, ¶ 13.
¶65 Janette submitted an attorney fees affidavit detailing the
fees she incurred in the case. The affidavit claimed “$275,659.00
20170956-CA 28 2019 UT App 147McQuarrie v. McQuarrie
was incurred in [her] efforts to enforce the terms of the [Decree]”
and, of that amount, $61,448 was incurred in “the prosecution of
[the Show Cause Motion].” Based on that affidavit, Janette filed a
proposed order with an award of $275,659 in attorney fees. After
the court rejected this amount, Janette requested an award of
$61,448. But the court determined that those “fees [were] not
reasonable for an [order to show cause] hearing before the
commissioner and then the court.” After reviewing Janette’s
attorney fees affidavit, the court determined $9,480 “incurred in
fees was reasonable and necessary in relation to the prosecution
of [the Show Cause Motion]” and entered an order reflecting
that amount.
¶66 The district court’s fees award does not constitute an
abuse of discretion. Janette requested $61,448 in fees, but the
record reveals that the court concluded such an amount was not
“reasonably necessary to adequately prosecute” the Show Cause
Motion. See Dixie State Bank, 764 P.2d at 990. We cannot say such
a conclusion was “beyond the limits of reasonability.” See Strohm
v. ClearOne Commc’ns, Inc., 2013 UT 21, ¶ 52, 308 P.3d 424(quotation simplified). As the court explained, Janette prevailed
on the Show Cause Motion because Melvin simply “was not in
compliance with the Decree.” Janette may believe that $9,480 is
insufficient for her enforcement efforts, but “the amount itself
does not prove that the trial court abused its discretion.” Prince
v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 55, 56 P.3d 524. And
although Janette argues that “this matter has been heavily
contested and aggressively litigated by both parties,” a district
court “is in a better position than an appellate court to gauge the
quality and efficiency of the representation and the complexity
of the litigation.” Strohm, 2013 UT 21, ¶ 52 (quotation simplified).
Accordingly, we affirm the district court’s award of attorney fees
to Janette because we are not convinced that the award
amounted to “patent error or clear abuse of discretion.” See Dixie
State Bank, 764 P.2d at 989 (quotation simplified).
20170956-CA 29 2019 UT App 147McQuarrie v. McQuarrie
¶67 We note, however, that our remand of the annuity issue
may affect Janette’s attorney fees award. As the prevailing party
on the Show Cause Motion, Janette is entitled to fees on remand
reasonably incurred enforcing the Decree’s terms. Further,
because Janette received attorney fees for enforcing the Decree
below and she has substantially “prevailed on the main issues
on appeal,” she is entitled to attorney fees incurred for enforcing
the Decree on appeal. See Oliekan v. Oliekan, 2006 UT App 405,
¶ 32, 147 P.3d 464 (quotation simplified). Accordingly, we direct
the court to award Janette her fees incurred for that purpose on
appeal and the fees she incurs for that purpose on remand.
CONCLUSION
¶68 We affirm the district court’s determination that Melvin’s
alimony obligation continued after Janette’s remarriage. But we
conclude the court abused its discretion by entering a judgment
against Melvin that failed to compensate Janette for the actual
loss caused by his failure to timely purchase the annuity. And
we affirm the court’s award of attorney fees to Janette as the
prevailing party on the Show Cause Motion. Accordingly, we
affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion. On remand, the district
court should enter a judgment against Melvin that adequately
compensates Janette for Melvin’s failure to timely purchase the
annuity. It should also award Janette her attorney fees incurred
for enforcing the Decree on appeal and the fees she incurs for
that purpose on remand.
20170956-CA 30 2019 UT App 147