Rosser v. Rosser

2019 UT App 25

THE UTAH COURT OF APPEALS

HOLLY REBECCA ROSSER,
Appellee,
v.
RONALD LEE ROSSER,
Appellant.

Amended Opinion 1
No. 20170736-CA
Filed February 14, 2019

Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman
No. 154600013

Steven W. Beckstrom, Attorney for Appellant
Stephen D. Spencer, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 Ronald Lee Rosser and Holly Rebecca Rosser divorced in
2016 pursuant to a stipulated decree of divorce that was the
result of mediation. One of the points of contention in their
divorce case was how the parties would divide their 2015 tax
obligations. At the conclusion of the mediation, the parties
apparently agreed to split the 2015 tax liability equally. A few

1. This Amended Opinion replaces the Opinion in Case No.
20170736-CA that was issued on January 10, 2019. After our
original opinion issued, Ronald filed a petition for rehearing,
and we called for a response. We grant the petition for the
limited purpose of clarifying Ronald’s entitlement to an award
of attorney fees, as reflected in footnote 9 herein.
Rosser v. Rosser

weeks later, however, both parties executed a stipulated decree
of divorce that obligated Holly 2 to “pay any tax liabilities . . . for
the year 2015.” Later, after Ronald refused to pay any of the
outstanding 2015 tax obligation, Holly obtained an order to
show cause and asked the district court to hold Ronald in
contempt of court for refusing to pay his share of the 2015 taxes.
The court granted Holly’s request and found Ronald in
contempt. Ronald now appeals, and we agree with Ronald that
the actions he was found to have taken do not constitute
statutory contempt of court. Accordingly, we vacate nearly the
entirety of the district court’s contempt order, and remand this
case for further proceedings.

BACKGROUND

¶2 After twenty-five years of marriage, Holly and Ronald
separated in 2014, and Holly later petitioned for divorce. Over
the course of their marriage, the parties acquired various assets,
including several vehicles, a residence in Panguitch, Utah, two
other parcels of real property, and a number of franchise
restaurants that were owned by a company in which Holly and
Ronald each held a 50% stake. In addition to these assets, the
parties also had certain debts, including a $29,902.71 tax
obligation owed to the IRS for the 2015 tax year. The parties took
opposing positions regarding the division of some of these assets
and liabilities.

¶3 In an attempt to resolve their differences prior to trial, the
parties agreed to participate in mediation on June 16, 2016.
During that mediation session, the parties were able to come to
an agreement regarding all of their issues, including the 2015 tax

2. Because both parties share the same surname, we identify the
parties by their first names throughout this opinion. We intend
no disrespect by the apparent informality.

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obligation. This consensus was memorialized in a three-page
written agreement (the Mediation Agreement) that was signed
by all parties immediately upon completion of the mediation.
With regard to the tax obligation, the Mediation Agreement
states as follows: “IRS debt from 2015, 50% Ron and 50% Holly.”
The parties also agreed that Ronald would be entitled to certain
“rebates” that the couple’s business received.

¶4 In the weeks following the mediation, Holly paid her half
of the 2015 tax obligation. For reasons unclear from the record,
Ronald did not. However, Ronald did contact the parties’
accountant and identify several additional tax deductions that he
thought could potentially reduce the parties’ 2015 tax liability.
Acting on Ronald’s instructions, in July 2016 the accountant
prepared an amended 2015 tax return for Ronald and Holly. In
preparing that return, however, the accountant mistakenly
assumed that the entire previous 2015 tax obligation of
$29,902.71 had already been paid, when in reality only half of it
(Holly’s half) had actually been paid. As a result, the amended
tax return indicated that not only did Ronald and Holly not owe
any taxes for 2015, they were actually due a tax refund of
approximately $7,900. Holly would later testify that, operating
on the assumption that Ronald had paid his half of the pre-
existing 2015 tax obligation as she had done, she believed that
the amended returns were accurate and that the parties were in
fact owed a refund. For his part, Ronald would later testify that
he also believed the amended tax returns were accurate, but
premised this belief on a different assumption: that Holly had
paid the entirety of the 2015 tax obligation in consideration for
other income she had negotiated from him. Apparently both
under the belief that the amended returns were accurate, the
parties signed those returns on or about August 22, 2016.

¶5 On or about August 4, 2016—after the amended tax
returns had been prepared and reviewed, but before either party
actually signed them—the parties and their attorneys all signed
a Stipulated Motion for Entry of Findings of Fact and

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Conclusions of Law and Final Decree of Divorce. With respect to
the 2015 tax obligation, that stipulation stated—in contrast to the
Mediation Agreement—that Holly “shall be solely entitled to
receive any refund resulting from the amended returns, and
shall also be responsible to pay any tax liabilities resulting to any
of the Parties for the year 2015.” A few days later, on August 8,
2016, the district court signed a Final Decree of Divorce (the
Decree) in accordance with the parties’ stipulated motion. Under
the terms of the Decree, Holly “shall be solely entitled to receive
any refund resulting from the amended [2015 tax] returns, and
shall also be responsible to pay any tax liabilities resulting to any
of the Parties for the year 2015.” The Decree also states that
Ronald is entitled to the rebates as agreed upon at the mediation.

¶6 Holly later discovered that the amended tax returns were
inaccurate, and that instead of being entitled to a $7,900 refund
for tax year 2015, the parties still owed $7,174.98. Under the
terms of the recently-entered Decree, Holly was obligated to
make this payment, but she considered that result unfair since
she had already paid her half of the 2015 tax obligation, as the
parties had agreed at mediation, and Ronald had not. In part
because she felt as though Ronald owed her money related to the
2015 tax obligation, she declined to pass along to Ronald certain
rebate checks she received to which Ronald was entitled under
the terms of the Decree.

¶7 On November 21, 2016, Holly filed a Motion for Order to
Show Cause, alleging that Ronald had defrauded her and asking
the court to order Ronald to pay his share of the parties’ 2015 tax
obligations as well as her attorney fees in bringing the motion. A
few weeks later, Ron filed his own Motion for Order to Show
Cause, alleging that Holly had willfully failed to comply with
the provision of the Decree that concerned the rebates.
Eventually, the district court scheduled both motions for an
evidentiary hearing. During that hearing, Holly testified that
Ronald had misled her into believing that he had paid his share
of the parties’ 2015 tax obligation assigned to him pursuant to

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the Mediation Agreement. Ronald, by contrast, testified that
Holly was not only aware that he had not done so, but that after
mediation she had agreed to pay the entirety of the tax
obligation. With regard to the rebates, Holly acknowledged that
she had received rebate checks to which Ronald was entitled
under the Decree, but stated that she had not passed those along
to Ronald because she felt that he owed her money related to the
2015 tax obligations.

¶8 At the conclusion of the hearing, the court found that
Ronald deceived Holly by allowing her to believe that he had
paid his share of the tax obligation, and that Holly had not in
fact agreed to pay it herself. The court then found Ronald in
contempt of court for “his deliberate deceit and failure to act as
agreed between the parties on June 16, 2016,” and ordered
Ronald to pay Holly approximately $15,000 plus reasonable
attorney fees, which were later determined to be $4,000. The
court also found that Holly had “failed to make” the rebate
payments to Ronald as required by the Decree, but that Holly’s
conduct “did not intentionally violate the Decree” because Holly
was “merely reacting to [Ronald’s] deceit.” Accordingly, the
court allowed Holly to “offset” the rebate amounts she owed
Ronald against the amount it determined Ronald owed her on
the tax issue. After quantifying the amount of attorney fees to
which it believed Holly was entitled, the court eventually
entered judgment against Ronald in the amount of $18,951.11,
but stated, in the judgment, that Holly “may apply” the
“rebates toward the judgment and thus give [Ronald] credit” for
them.

ISSUE AND STANDARD OF REVIEW

¶9 Ronald appeals from that judgment, and asks us to
consider whether the district court erred in holding him in
contempt. When reviewing a district court’s decision to find a
party in contempt, “we review the district court’s findings of fact

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for clear error and its legal determinations for correctness.” LD
III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (quotation
simplified). Ronald’s chief complaint with the district court’s
contempt determination is a legal one: Ronald contends that the
facts alleged by Holly, even if true, cannot constitute statutory
contempt of court as a matter of law. 3 This is a legal question
that we review for correctness. Id.

ANALYSIS

¶10 Under Utah statutory law, a court has authority to hold a
person in contempt of court for any one of twelve enumerated
reasons. See Utah Code Ann. § 78B-6-301 (LexisNexis 2012). 4

3. Among other additional arguments, Ronald also takes issue
with certain of the district court’s factual findings supporting its
contempt determination, but because we determine that the facts
as set forth by Holly cannot constitute statutory contempt as a
legal matter, we need not consider any of Ronald’s other
arguments, including whether the district court clearly erred in
any of its factual determinations.

4. Under Utah law, courts also have inherent (non-statutory)
contempt powers. See Chen v. Stewart, 2005 UT 68, ¶ 36, 123 P.3d
416 (“A court’s authority to sanction contemptuous conduct is
both statutory and inherent.”). In this case, however, Holly did
not ask the district court to invoke its inherent powers and, in its
order, the district court did not expressly invoke any such
powers. On appeal, Holly defends the district court’s order by
asserting that the court had the statutory power to issue its
contempt order. Because the district court does not appear to
have invoked its inherent power, and because Holly does not
argue that it did, we do not address whether the district court
would have had the power to hold Ronald in contempt of court
pursuant to its inherent (as opposed to its statutory) authority.

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Ronald contends that none of the twelve grounds apply
here, and that therefore the district court was without
statutory authority to hold him in contempt. We agree with
Ronald.

¶11 In this case, while it is clear that the district court found
that Ronald was in contempt of court, it is unclear which of the
twelve statutory grounds the court relied upon. In its order, the
court stated that Ronald was “in contempt, due to his deliberate
deceit and failure to act as agreed between the parties on June
16, 2016.” The court gave no other indication of the legal (as
opposed to the factual) grounds for its determination that
Ronald was in contempt of court.

¶12 Holly asserts that the district court implicitly relied upon
two of the twelve statutory grounds for contempt: (a) the fourth
one, which allows a court to find a “party to an action” in
contempt for “deceit, or abuse of the process or proceedings of
the court”; and (b) the fifth one, which allows a court to find a
person in contempt for “disobedience of any lawful judgment,
order or process of the court.” Id. § 78B-6-301(4), (5). We are not
convinced that either of these grounds was appropriately
invoked in this case.

¶13 The court did mention Ronald’s “deliberate deceit” as
part of its reason for holding Ronald in contempt of court. But
the deceit the court described in its findings was not deceit
Ronald committed upon the court; rather, it was deceit Ronald
apparently committed upon Holly by not telling her that he had
failed to pay his share of the parties’ 2015 tax obligation. In this
case, there is no allegation, let alone a finding, that Ronald
committed deceit or fraud on the court, and in our view
subsection (4) of the contempt statute must be interpreted to
include only deceit committed on the court.

¶14 We reach that conclusion after reviewing the provision in
context. First, subsection (4)—unlike other subsections—is by its

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own terms limited to the actions of “part[ies] to the action or
special proceeding.” See id. § 78B-6-301(4). Second, “deceit” is
part of a short list of things that might be found contemptuous
under that subsection, and the other thing listed is “abuse of
the process or proceedings of the court.” Id. Our supreme court
requires a “commonsense approach” to statutory interpretation
in which “a word is given more precise content by the
neighboring words with which it is associated.” See Thayer v.
Washington County School Dist., 2012 UT 31, ¶ 15, 285 P.3d
1142 (quotation simplified). Here, the entire thrust of the
subsection is aimed at allowing a court to penalize deceitful
misuse of judicial proceedings by parties to those proceedings.
Ronald’s actions were all undertaken toward Holly, and not
toward the court, and thus cannot fall within the ambit of
subsection (4).

¶15 It is contemptible deceit, for example, to lie to a
court under oath. 5 See Bhongir v. Mantha, 2016 UT App 99, ¶ 16,
374 P.3d 33. It is also contemptible deceit to file false documents,
see, e.g. PacifiCorp v. Cardon, 2016 UT App 20, ¶ 3, 366 P.3d 1226,

5. During the course of the hearing on Holly’s order to show
cause, Ronald testified that he had a meeting with Holly in July
2016 where she agreed to pay all of the 2015 taxes. Holly denied
that any such meeting ever occurred, and denied ever agreeing
to pay the entirety of the 2015 tax obligation. The district court
credited Holly’s version of those events, and made a finding that
Ronald was “not telling the truth” in setting forth his version.
However, there is no indication in the remainder of the court’s
contempt order that it intended to hold Ronald in contempt for
the particular statement that it found was not true. The court’s
specific contempt finding lists only “deceit” in “fail[ing] to act as
agreed between the parties on June 16, 2016,” and makes no
attempt to ground a contempt finding on any “deceit” associated
with Ronald’s testimony about the July 2016 meeting.

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or to falsely testify during a divorce proceeding that one
has very little money and then skip town with money which
one has previously deposited under an assumed name, see Smith
v. Smith, 218 P.2d 270, 271–72 (Utah 1950). But these are all
actions taken toward the court, and we are aware of no case—
and Holly provides us with none—in which a court held a
person in contempt for deceit that occurred outside of the
presence of the court, was directed towards another party, and
did not involve false sworn testimony or the filing of a falsified
document.

¶16 We share Ronald’s concern that, were Holly’s position
governing law, there would be little to prevent any untruthful
statement made by any party to anyone while litigation is
pending from being punishable by contempt of court. Indeed,
Holly’s contentions in this case are, in essence, that Ronald
breached the Mediation Agreement and in the course of doing so
made fraudulent statements—or at least committed fraudulent
nondisclosure—toward Holly. In our view, it would stretch the
meaning of subsection (4) of the contempt statute well beyond its
intended meaning if facts like these, even if true, were
determined to fall within its ambit.

¶17 Holly next contends that the district court could also have
been relying on subsection (5), which allows a court to punish
“disobedience of any lawful judgment, order or process of the
court.” Utah Code Ann. § 78B-6-301(5) (2012). But the district
court did not reference any judgment or order that it believed
Ronald disobeyed. Instead, the only document the court
mentioned was the Mediation Agreement; the court faulted
Ronald for failing “to act as agreed between the parties on June
16, 2016.” It is undisputed that, as part of the Mediation
Agreement, Ronald agreed to pay half of the parties’ 2015 tax
obligation, and that he did not ever actually do so. But the
Mediation Agreement was not an order of the court; it was just a
private agreement between two parties. Breach of a private

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agreement that has not yet been made an order of the court
cannot be a violation of subsection (5) of the contempt statute. 6

¶18 Holly attempts to defend the court’s contempt order by
asserting that Ronald was not only in violation of the parties’
private Mediation Agreement, but that he was also in violation
of the Decree, and that—even though the district court made no
mention of it—the district court intended to hold Ronald in
contempt for failure to comply with the terms of the Decree. For
support, Holly directs our attention to paragraph 9(r) of the
Decree, which is the paragraph setting forth the parties’ rights
and obligations regarding the 2015 tax obligation. As noted
above, that paragraph states that Holly is to receive any 2015 tax
refund to which the parties may be entitled, but that Holly “shall
also be responsible to pay any tax liabilities resulting to any of
the Parties for the year 2015.” The plain terms of the Decree (as
opposed to the Mediation Agreement) obligate Holly to pay the
entirety of the parties’ 2015 tax obligation, whatever that
obligation might be. While Ronald’s failure to pay half of that
obligation may well violate the terms of the Mediation
Agreement, such failure clearly does not violate the terms of the
Decree, because the Decree imposed upon Ronald no obligation
to pay any of the parties’ 2015 tax obligation.

6. The district court ordered the parties to participate in
mediation. However, Holly makes no claim that Ronald failed to
participate in mediation, or that the district court intended to
hold Ronald in contempt for violating its order that the parties
participate in mediation. See, e.g., Rawlings v. Rawlings, 2008 UT
App 478 ¶¶ 24-28, 200 P.3d 662 (holding that while complete
failure to participate in court-ordered mediation may constitute
a violation of a court order to participate in mediation in good
faith, participating with no intention of making or considering
any settlement offers does not), reversed on other grounds by
Rawlings v. Rawlings, 2010 UT 50, 240 P.3d 754.

20170736-CA 10 2019 UT App 25
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¶19 Holly argues, however, that paragraph 9(r) of the Decree
is at least ambiguous, and asks us to consider parol evidence,
most notably the Mediation Agreement, in construing its terms.
Holly maintains that the “ambiguity” contained in paragraph
9(r) was “the presence or absence of a tax refund,” and asserts
that she only agreed to the terms of the Decree because she
believed that she would receive a tax refund. Holly’s argument
fails, however, because the plain language of the Decree is not
itself ambiguous, and clearly obligates her—and not Ronald—to
pay any outstanding tax liability. A provision is ambiguous only
if “its terms are capable of more than one reasonable
interpretation because of uncertain meanings of terms, missing
terms, or other facial ambiguities.” See Mind & Motion Utah
Investments, LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d
994 (quotation simplified). If the language is not ambiguous,
“the parties’ intentions are determined from the plain meaning
of the contractual language, and the contract may be interpreted
as a matter of law.” Id. (quotation simplified). “Terms are not
ambiguous simply because one party seeks to endow them with
a different interpretation according to his or her own interests.”
Id. (quotation simplified). Instead, “the proffered alternative
interpretations must be plausible and reasonable in light of the
language used.” Id. (quotation simplified).

¶20 Holly’s interpretation of the language contained in
paragraph 9(r) is simply not “plausible and reasonable in light of
the language used.” Id. Where the language clearly imposes
upon Holly the obligation to pay whatever tax obligation the
parties owed for the 2015 tax year, any interpretation that
imposes that obligation, even in part, upon Ronald is simply not
consonant with the plain meaning of the language used.
Accordingly, Ronald’s failure to pay any portion of the parties’
2015 tax obligation is not a violation of the plain terms of the
Decree, and therefore the district court could not have properly
held Ronald in contempt of court on that basis.

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CONCLUSION

¶21 A statutory contempt remedy simply does not fit the facts
of this case, even if we assume that Holly’s version of the facts is
correct. Ronald did not commit deceit on the court, nor did he
violate an order or judgment of the court. He appears to have
violated the terms of the Mediation Agreement, and—although
we express no opinion on the matter—he may have committed
fraud or fraudulent nondisclosure upon Holly in the time period
between the mediation and the entry of the Decree. But Holly’s
remedy, if any, for Ronald’s actions must be found somewhere
other than the contempt statute. 7 We vacate nearly the entirety 8

7. For instance, a party in Holly’s situation could, among other
options, (a) elect to file a petition to modify the Decree, asserting
a substantial and material change in circumstances; (b) file a
motion, pursuant to rule 60(b)(3) of the Utah Rules of Civil
Procedure, seeking relief from the terms of the Decree on the
basis of fraud; or (c) file a separate lawsuit alleging fraud,
fraudulent nondisclosure, or some other appropriate cause of
action, and seeking damages. We express no opinion about
whether, on the facts presented here, Holly would be entitled to
relief under any of these options.

8. We do not vacate Paragraphs 20–22 of the district court’s
contempt order. In those paragraphs, the district court
determined that Holly had failed to comply with the provision
of the Decree that required her to pass along to Ronald certain
rebate checks that she might receive. Holly has not appealed
those findings, and takes no issue with them in the context of
Ronald’s appeal. On remand, the district court may revisit the
question of whether Holly is entitled to offset her obligation to
Ronald regarding the rebate checks against any other obligation
Ronald may owe her, or whether a judgment in Ronald’s favor
regarding the rebate checks is appropriate.

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of the district court’s contempt order, including its order that
Ronald pay attorney fees, 9 and remand this case for further
proceedings consistent with this opinion.

9. Ronald not only asks that we vacate the attorney fees award
entered against him, which we hereby do, but he also asks that
we also (a) order Holly to reimburse him for the attorney fees he
incurred on appeal and (b) direct the district court to award him
his fees he incurred during the contempt proceedings before the
district court. Ron’s request for an affirmative award of attorney
fees is premature. As we have previously stated, in situations
like this it will be up to the district court, on remand, to
determine whether Ron should be awarded his attorney fees
incurred during the contempt proceedings before the district
court. See Thayer v. Thayer, 2016 UT App 146, ¶ 41, 378 P.3d 1232
(reversing a district court decision in favor of Husband and
noting that therefore “Wife has ultimately substantially
prevailed both on appeal and in the district court,” but declining
to direct the district court to award Wife the fees she incurred
before the district court, stating that “[t]he district court on
remand should evaluate Wife’s request for attorney fees . . .”).
Ron has certainly prevailed on appeal, but he will only be
entitled to reimbursement of the attorney fees he incurred on
appeal if the district court, on remand, decides to award Ron the
attorney fees he incurred before the district court. Id. (stating that
“[i]f the court awards attorney fees [on remand], the award
should also include Wife’s attorney fees reasonably incurred for
enforcing the decree on appeal”).

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