Schiefer v. Schiefer

Schiefer v. Schiefer

IN THE UTAH COURT OF APPEALS
 

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Mark A. Schiefer,

 

Petitioner and Appellant,

v.

Regina M. Schiefer,

Respondent and Appellee.

MEMORANDUM DECISION(Not For Official Publication
 

Case No. 20040790-CA
F I L E D
(March 3, 2005)
 

2005 UT App 104

 

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Third District, Silver Summit Department

The Honorable Robert K. Hilder

Attorneys: Margaret P. Lindsay, Orem, for Appellant

David S. Dolowitz and Dena C. Sarandos, Salt Lake City, for Appellee

 

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    Mark A. Schiefer (Husband) appeals from an order dismissing his petition to modify a decree of divorce as a discovery sanction. This case is before the court on a sua sponte motion for summary disposition.

    Rule 37 of the Utah Rules of Civil Procedure provides district courts with the authority to impose a variety of discovery sanctions on parties that "fail to obey an order to provide or permit discovery," including dismissal. Utah R. Civ. P. 37(b)(2)(c). To impose discovery sanctions under rule 37:

"The trial court must first meet the threshold requirement of finding on the part of the noncomplying party at least one of the following four circumstances: '(1) the party's behavior was willful; (2) the party has acted in bad faith; (3) the court can attribute some fault to the party; or (4) the party has engaged in persistent dilatory tactics tending to frustrate the judicial process.'"

Wright v. Wright, 941 P.2d 646, 649 (Utah Ct. App. 1997) (quoting Morton v. Continental Baking Co., 938 P.2d 271, 276 (Utah 1997)). Once the district court has made one of these findings, the noncomplying party's conduct is considered to "merit sanctions under rule 37." Id.

    The district court determined that Husband failed to provide requested discovery and that, "as a result of his failure, [Husband] had rendered counsel for both of the parties incapable of trying the matters that he had asserted and he had rendered the Court incapable of making a decision as to what was his income." This finding attributes fault to Husband for his failure to adequately respond to Regina M. Schiefer's (Wife) discovery requests, and therefore is sufficient under Wright, see id., and Morton, see 938 P.2d at 274-75. The district court made the threshold determination required to impose discovery sanctions.

    "Once the trial court has made one of the required four findings and thus determined that the noncomplying party's conduct merits Rule 37 discovery sanctions, the trial court can then choose which discovery sanctions are most appropriate to impose." Wright, 941 P.2d at 649. District courts have "'broad discretion in selecting and imposing sanctions for discovery violations, including dismissing the noncomplying party's' pleadings." Tuck v. Godfrey, 1999 UT App 127,¶15, 981 P.2d 407 (quoting Preston & Chambers, P.C. v. Koller, 943 P.2d 260, 262 (Utah Ct. App. 1997)). Moreover, "[a]ppellate courts may not interfere with such discretion unless abuse of discretion is clearly shown." Id. "A trial court's abuse of discretion in selecting which sanction to impose may be shown 'only if there is either an erroneous conclusion of law or no evidentiary basis for the trial court's ruling.'" Id. (quoting Morton, 938 P.2d at 274).

    Husband has failed to show that the district court's decision to dismiss the petition to modify was based upon an erroneous conclusion of law or that there was no evidentiary basis for this decision. To the contrary, it appears that Wife filed numerous motions to compel discovery in this case and that Husband was directed on more than one occasion by the district court to respond. Despite these orders, the passage of a year and a half, and more than one trial continuance, neither Wife nor the district court had sufficient documentation to understand the basis of Husband's petition to modify or to proceed to trial. There is sufficient evidence in this case to support the district court's ruling. Thus, Husband has not shown abuse of discretion by the district court.

    Accordingly, the district court's order dismissing the petition is affirmed.

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge