Meretta Adams, Petitioner and Appellee, v. Nolan Duane Adams, Respondent and Appellant.

Case No. 20020135-CA.Utah Court of Appeals.
Filed April 15, 2004. (Not For Official Publication).

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Fifth District, St. George Department, The Honorable James L. Shumate.

Britt K. Beckstrom and G. Michael Westfall, St. George, for Appellant.

Shawn T. Farris, St. George, for Appellee.

Before Judges Bench, Davis, and Orme.

MEMORANDUM DECISION
ORME, Judge:

We have determined that “[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument.” Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.

“Where collateral legal consequences may result from an adverse decision, courts have generally held an issue not moot and rendered a decision on the merits.” In re Giles, 657 P.2d 285, 286 (Utah 1982). Thus, we disagree with Appellee’s suggestion that the contempt issue is moot.

“When a contempt is committed in the immediate view and presence of the court . . . it may be punished summarily[.]” Utah Code Ann. § 78-32-3 (2002). However, “[w]hen the contempt is not committed in the immediate view and presence of the court . . . an affidavit shall be presented to the court . . . of the facts constituting the contempt.” Id. (emphasis added). “Indirect contempt requires additional procedural protections. Under section 78-32-3, an affidavit must be presented to the court reciting the facts constituting the alleged contemptuous conduct.” Khan v. Khan, 921 P.2d 466, 468 (Utah Ct.App. 1996) (emphasis added). “If no such affidavit is presented to the court, indirect contempt cannot be found.” Id.

In this case, Appellant was not provided with the procedural protections necessary for the trial court to find him in indirect contempt. Appellee argues that although no affidavit was presented, her motion for damages served the same purpose of informing Appellant and the trial court of Appellant’s conduct, which Appellee alleged to be contemptuous. However, the one-sentence request that Appellant be found in contempt, which appeared at the end of Appellee’s six-page motion for damages, seems to be an afterthought that “[a]t most . . . provided notice that Wife might request the trial judge to authorize and issue an order to show cause.” Boggs v. Boggs, 824 P.2d 478, 481 (Utah Ct. App. 1991). In no meaningful sense is a single unsworn sentence the equivalent of a detailed affidavit.

“As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew 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). The trial court also erred by not “enter[ing] written findings of fact and conclusions of law with respect to each of the three substantive elements.”Id.

With respect to the preservation question, it is not necessary for us to decide whether Appellant’s objection to improper service was adequate to preserve his right to appeal the contempt order because the trial court plainly erred in not following the clear mandate of section 78-32-3. See generally State v.Bluff, 2002 UT 66, ¶ 25, 52 P.3d 1210, cert. denied, 537 U.S. 1172, 123 S.Ct. 999 (2003).

Therefore, because Appellant was denied the procedural protections afforded to him and was improperly found in contempt, we vacate the contempt order.[1]

WE CONCUR: Russell W. Bench, Associate Presiding Judge James Z. Davis, Judge.

[1] With respect to the host of other issues raised by Appellant, insofar as not already rectified by the trial court in the context of Appellant’s motion pursuant to rule 60(b) of the Utah Rules of Civil Procedure, we are not persuaded there was reversible error and decline to otherwise disturb the trial court’s disposition.