Dehart v. Dehart

Dehart v. Dehart, Case No. 981364-CA, Filed October 16, 1998. IN THE UTAH COURT OF APPEALS   ----ooOoo---- MEMORANDUM DECISION (Not For Official Publication)

  Larry Dehart, Plaintiff and Appellant, v. Joyce Dehart, Defendant and Appellee. Case No. 981364-CA F I L E D (October 16, 1998)   -----  

Second District, Ogden Department

The Honorable W. Brent West

Attorneys: Michael J. Boyle and Daniel S. Drage, Ogden, for Appellant

Joseph W. O'Keefe, Jr., Ogden, for Appellee -----  

Before Judges Wilkins, Jackson, and Orme.

PER CURIAM:

Appellant Larry Dehart appeals from an order directing the sale of the marital residence. This case is before the court on a sua sponte motion for summary affirmance. Appellant also moves for summary reversal. We affirm.

The divorce decree provided that the parties marital home should be sold as soon as reasonably possible and after all expenses of the sale are paid and all debts are paid, the parties shall equally divide the proceeds. Appellant attempted to reach an agreement with appellee for the purchase of her share of the property; however, no agreement was reached. Appellant rejected appellee's counter-offer to sell her share for $60,000, having concluded his attorney could negotiate a lower price. After the rejection, the property was listed for sale, which resulted in an offer to purchase the property. When appellant refused to sign the documents necessary to effect the sale, the trial court granted an ex parte motion from the purchaser to allow the sale to go forward. Following an unsuccessful attempt to obtain a temporary restraining order, appellant appealed from the order directing the sale.

It is undisputed that counsel for the non-party purchaser did not serve the parties to the divorce proceeding with the motion for an order directing the sale of the property. The record reflects, however, that appellant presented his arguments to the trial court in a telephonic hearing on the motion for temporary restraining order held prior to transfer of the property. Any error in granting the ex parte motion was remedied, was not prejudicial to appellant, and is harmless. To the extent appellant claims he was denied an opportunity to have his claims heard, the claim is without merit.

Appellant did not appeal from the divorce decree requiring the marital home to be sold, without any provision for one spouse to "cash out" the other. He also did not reach an agreement with appellee to sell her interest in the home to him. Appellant incorrectly assumes he could withhold consent to a sale in order to force appellee to sell her share to him or that he had a de facto right of first refusal that allowed him to withhold consent to the sale. These assumptions are without support. The divorce decree ordered the property to be sold as soon as possible. Appellant did not appeal, and he had no right to unilaterally delay the decree's enforcement. Contrary to appellant's assertion, there were no legal issues about who could legally purchase the property. Appellant's claims regarding irregularities in the execution of a listing agreement are without merit.

Appellee requests an award of her attorney fees incurred in defending this appeal. Under the circumstances of this case, we determine that the appeal is without a reasonable basis in law or fact and an award of attorney fees is appropriate. See Utah R. App. P. 33(b); see also O'Brien v. Rush, 744 P.2d 306, 310 (Utah Ct. App. 1987). As a further basis for the award, we note that appellant did not advise this court that his claims regarding lack of notice were raised in the motion for temporary restraining order and adjudicated in the trial court prior to filing of his appeal. Thus, appellant incorrectly created the impression his claims were not considered in the trial court, in violation of his due process rights.

We affirm the judgment, and remand the case to the trial court for determination of the amount of attorney fees reasonably incurred in defending this appeal and entry of an award in that amount.
 
 
 
 

______________________________

Michael J. Wilkins,

Associate Presiding Judge
 
 
 
 

______________________________

Gregory K. Orme, Judge
 
 
 
 

______________________________

Norman H. Jackson, Judge