Hardy v. Hardy (Smeltzer)
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IN THE UTAH COURT OF APPEALS ----ooOoo---Ronald W. Hardy, Plaintiff and Appellant, v. Jean Hardy (Smeltzer), Defendant and Appellee. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20040812-CA F I L E D (November 25, 2005) 2005 UT App 504 ----Fifth District, Cedar City Department, 944500067 The Honorable J. Philip Eves Attorneys: Blaine T. Hofeling, Cedar City, for Appellant Jennifer P. Lee, Murray, for Appellee ----- Before Judges Billings, Davis, and McHugh. BILLINGS, Presiding Judge: Plaintiff Ronald Hardy appeals the trial court's denial of his motion requesting that Defendant Jean Hardy be found in contempt of court in a parent visitation dispute. Plaintiff argues that Defendant should be found in contempt of court because she delivered the parties' child for visitation two days later than required by statute. See Utah Code Ann. ยง 30-335(2)(g)(ii) (2004). For the court to find contempt, "the person [must have] . . . kn[own] what was required, had the ability to comply, and intentionally failed or refused to do so." Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). In the instant case, the trial court concluded that "[e]ven though Defendant denied Plaintiff visitation, because Defendant was relying upon an old version of the statute and did in fact deliver the parties' minor child for part of the visitation, the [c]ourt cannot conclude that Defendant's denial was willful. Defendant cannot, therefore, be held in contempt." Plaintiff has not properly challenged this finding, therefore we accept it. Thus, Defendant's conduct was not willful, and as a result, the trial court did not err by finding that Defendant was not in contempt. Plaintiff next argues that the trial court erred by failing to hold Defendant in contempt for being unaware of the current visitation statute. However, even if Defendant had a duty to stay up to date on any changes to the visitation statute, Defendant would not be in contempt because Plaintiff cannot prove that Defendant knew that she had such a duty or that she willfully failed to remain current in the law. Accordingly, we determine that the trial court did not err in failing to find that Defendant was in contempt, and we affirm. ______________________________ Judith M. Billings, Presiding Judge ----WE CONCUR: ______________________________ James Z. Davis, Judge ______________________________ Carolyn B. McHugh, Judge 20040812-CA 2
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