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Wollsieffer v. Wollsieffer

Court of Appeals of Utah

June 6, 2019

Burris Wollsieffer, Appellant,
Heather Wollsieffer, Appellee.

          Third District Court, Salt Lake Department The Honorable Matthew Bates No. 154905336

          Burris Wollsieffer, Appellant Pro Se

          Courtney Cooper, Ryan A. Rudd, and Bruce M. Pritchet Jr., Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.


         ¶1 Burris Wollsieffer (Father) petitioned for modification of the parties' settlement agreement and the Illinois judgment dissolving their marriage. Heather Wollsieffer (Mother) moved the court to hold Father in contempt for his refusal to comply with certain terms of that judgment. After a bench trial, the trial court found Father in contempt for his failure to satisfy his child support obligations and awarded Mother the attorney fees she incurred in her enforcement proceeding. The court also modified Father's child support obligations. Father appeals. We affirm and remand to the trial court for a determination of Mother's attorney fees reasonably incurred on appeal.


         ¶2 Father and Mother divorced in Illinois in 2013. They entered into a settlement agreement, and based upon that agreement, an Illinois court issued a judgment (Illinois Divorce Judgment) awarding Mother sole custody of the parties' children, subject to Father's parent-time. Based on his income, the court ordered Father to pay $935.85 as child support every two weeks. Moreover, the Illinois court directed Father to provide additional child support in the amount of 32% of any net bonuses and any income earned in excess of his annual income used for calculating child support (Additur Provision). The Illinois Divorce Judgment required each party to pay one-half of the daycare expenses for the children. When the decree was entered, the parties were living in different states. They anticipated daycare expenses of $2, 000 per month, due in part to Mother's work-related travel. In the settlement agreement, the parties acknowledged that Mother planned "to move to the state of California" with the children, and Father, who resided in South Dakota at the time, was "moving to Florida."

         ¶3 In 2015, both parties briefly resided in Utah and Father registered the Illinois Divorce Judgment with the Utah court. In August 2015, Father petitioned for modification of the Illinois Divorce Judgment, alleging that a substantial and material change in circumstances justified altering the existing orders. Father primarily sought a reduction in his child support obligation, but he also requested that the court "make equitable orders regarding parent time and award [Father] statutory parent time" because Mother had allegedly been interfering with his parent-time. Father served Mother with the petition to modify in October 2015.

         ¶4 Mother moved to dismiss Father's petition, arguing that Father had failed to establish a substantial and material change in circumstances that would support modification of his child support obligation and the parent-time provisions of the Illinois Divorce Judgment. The court agreed with Mother that the parent-time provisions of Father's petition to modify should be dismissed but denied Mother's motion to dismiss with respect to the modification of the child support provisions. Mother also filed an order to show cause alleging that Father had failed to stay current on child support and daycare expenses as ordered by the Illinois Divorce Judgment. The parties proceeded to trial in April 2017 on these issues.

         ¶5 After hearing testimony and reviewing the evidence offered at trial, the court determined that both parties' incomes had materially increased and that the change in incomes justified a modification of the Illinois Divorce Judgment. Although the parties' incomes had both increased, Father's child support obligation, calculated pursuant to the Utah child support guidelines, changed only minimally. The trial court ordered that child support be paid monthly rather than every other week and eliminated the original 32% Additur Provision from the Illinois Divorce Judgment. Lastly, the court ordered the modification to apply retroactively beginning January 1, 2016. In fixing this date, the court reasoned that the children lived in Utah for only the latter part of 2015 and that they should therefore benefit from the Illinois Divorce Judgment's Additur Provision for that year.

         ¶6 Among other evidence presented at trial, each party offered an exhibit detailing the payments Father had made for child support and daycare expenses since the Illinois Divorce Judgment was entered in 2013. Relying on Mother's exhibit, the trial court determined that Father failed to pay $1, 401.08 in past-due child support and $5, 520 in daycare expenses. For Father's refusal to comply with the Illinois Divorce Judgment and meet these obligations, the trial court held Father in contempt. The trial court further determined that Father received income in 2015 above the Additur Provision's threshold, triggering his obligation to pay an additional amount of child support for that year. Pursuant to the terms of the Illinois Divorce Judgment, the trial court concluded that 32% of Father's excess 2015 income-calculated to be approximately $10, 000 over the threshold-should have been directed to the parties' children in the form of additional child support. Because Father provided no child support under the Additur Provision for 2015, the court found Father in contempt and ordered him to pay $3, 205 in unpaid additional child support. In total, the court found that Father was $10, 126 in arrears.

         ¶7 Each party requested an award of attorney fees at the end of trial. The trial court denied Father's request for fees for his modification action because he was not impecunious. See Davis v. Davis, 2011 UT App 311, ¶ 22, 263 P.3d 520 ("To recover costs and attorney fees in proceedings on a petition to modify a divorce decree, the requesting party must demonstrate his or her need for attorney fees, the ability of the other spouse to pay, and the reasonableness of the fees." (quotation simplified)); see also Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2018). However, the court identified two other statutory bases supporting an award of attorney fees in this action: the contempt statute, see generally id. §§ 78B-6-311 to -317 (LexisNexis Supp. 2018), and Utah Code section 30-3-3(2), which authorizes an award of attorney fees and costs in any action to enforce an order of child support to the party that "substantially prevailed upon the claim or defense." Concluding that Mother "prevailed on her enforcement action," the court awarded her attorney fees, but limited that award specifically to counsel's time spent on the portion of the litigation focused on successfully proving Father's contempt. Supporting this conclusion, the trial court observed that Mother "filed an order to show cause in which she alleged that [Father] was delinquent in his existing support obligations" and that the court "held [Father] in contempt for failing to comply with the existing support order." The trial court also noted that "some of [Mother's] enforcement efforts were unsuccessful," particularly her argument that "[Father's] income was much higher than he was claiming."

         ¶8 Considering Mother's counsel's affidavit and supporting documents, including a detailed explanation of work performed and billing rates, the trial court ultimately awarded Mother $12, 300 in enforcement-related attorney fees.


         ¶9 Father appeals.[1] He first contends that the trial court erred when it determined that Mother substantially prevailed on her motion to enforce the Illinois Divorce Judgment and therefore erred in awarding her the attorney fees she incurred.[2] "The decision to award or deny attorney fees in domestic cases is within the [trial] court's sound discretion, and we will disturb the decision only if the [trial] court abuses that discretion." Gore v. Grant, 2015 UT App 113, ¶ 11, 349 P.3d 779. Moreover, we "review the trial court's determination as to who was the prevailing party under an abuse of discretion standard," R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119, but the trial court's "interpretation of a statute is a question of law that we review for correctness," Stephens v. Stephens, 2018 UT App 196');">2018 UT App 196, ΒΆ 20, ...

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