Beazer v. Farnsworth

Beazer v. Farnsworth

IN THE UTAH COURT OF APPEALS

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David Beazer,

Petitioner and Appellant,

v.

Jenee Hatton Farnsworth,

Respondent and Appellee.

______________________________

State of Utah, Office of Recovery Services,

Intervenor.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030589-CA
 

F I L E D
(April 7, 2005)
 

2005 UT App 161

 

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Third District, Murray Department

The Honorable Joseph C. Fratto Jr.

Attorneys: W. Kevin Jackson, Salt Lake City, for Appellant

David O. Black, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Greenwood.

BILLINGS, Presiding Judge:

    David Beazer appeals the trial court's order of child support. The trial court found Beazer in contempt for failure to pay the trial court's child support order.

    Beazer was properly found in contempt of court. To be found in contempt of court, "a party must have (1) known of the duty imposed by the court's order, (2) had the ability to comply with the order, and (3) willfully and knowingly refused to comply." Utah Farm Prod. Credit Ass'n v. Labrum, 762 P.2d 1070, 1074 (Utah 1988).

    Beazer knew of the duty imposed by the court's order. An order to show cause was issued and hand delivered to Beazer's attorney on July 30, 2004. Service of an order to show cause on the party's attorney is sufficient to satisfy the notice requirement. See D'Aston v. D'Aston, 790 P.2d 590, 592 (Utah Ct. App. 1990). Beazer also had the ability to comply with the order. Beazer argues that he was unable to comply due to a severe mental illness which prevented him from working in his profession as an attorney. The trial court considered numerous sources and exhibits to determine the ability of Beazer, including the deposition of Beazer's treating physician and psychiatrist. The court found that while "Mr. Beazer suffers from depression and a slight problem with his thyroid," Beazer could not establish by a preponderance of the evidence that his maladies were so severe as to keep him from working or earning income. Beazer argues that he challenges only the legal application of the facts, not the factual findings themselves, and as such, he need not marshal the evidence. However, we conclude that Beazer challenges the trial court's factual findings and because he failed to adequately marshal the evidence, we accept the trial court's findings of fact. See Young v. Young, 1999 UT 38,¶15, 979 P.2d 338. Finally, we accept the trial court's finding that Beazer willfully and knowingly refused to comply.

    Under this court's previous decision in D'Aston, in civil appeals where "the appellant is in contempt of a trial court order in the same action," 790 P.2d at 593, we will not hear his appeal until he submits to the trial court to cure his contemptuous acts. See id. at 594. In D'Aston, we determined that the contumacious appellant had thirty days from the date of the issuance of the opinion to bring herself in compliance with the trial court, but if appellant did not comply with the trial court's order, "her appeal will be dismissed at the expiration of the 30-day period." Id. at 595. Further, in Von Hake v. Thomas, 881 P.2d 895 (Utah Ct. App. 1994), we stated that "[u]nder D'Aston, a court has the discretion to determine what is a reasonable approach in dealing with a contumacious litigant." Id. at 898. Moreover, we determined that the thirty-day grace period from D'Aston was not mandatory in every circumstance, rather "each case must be examined on its own specific facts to determine what is reasonable." Id. Distinguishing the facts in D'Aston, where the party offered no reason why she could not comply nor why the court should grant her more time, from those in Von Hake, where the party was incarcerated in an out-of-state jail, we determined that a grace period would be pointless in Von Hake. See id.

    Due to the specific facts in the instant case, we stay this appeal under D'Aston and determine that Beazer has sixty days to purge his contempt. If Beazer complies with the trial court's order, or submits himself to the court to purge his contempt, and gives this court written notice of compliance within the sixty-day period, then we will consider his appeal on the merits. However, if Beazer fails, his appeal will be dismissed at the expiration of the sixty-day period.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge