Elder v. Elder

               THE UTAH COURT OF APPEALS

                      BRITTANY LEE ELDER,
                           Appellee,
                              v.
                      MATT BLAKE ELDER,
                           Appellant.

                             Opinion
                        No. 20210902-CA
                        Filed May 9, 2024

         Second District Court, Farmington Department
              The Honorable David M. Connors
                         No. 154700355

               Julie J. Nelson and Jaclyn Robertson,
                       Attorneys for Appellant
            Steven C. Tycksen, Attorney for Appellee

    JUDGE RYAN D. TENNEY authored this Opinion, in which
     JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1      The district court issued an order requiring Matt Blake
Elder to reimburse his ex-wife, Brittany Lee Elder, for the amount
she had paid to satisfy a loan on a townhouse that she had been
awarded in the divorce. 1 Matt challenges this ruling on appeal,
arguing that it was a procedurally improper modification of the
couple’s divorce decree. For the reasons set forth below, we
affirm.




1. Because the parties share a last name, we’ll refer to them by
their first names moving forward, with no disrespect intended by
the apparent informality.
                           Elder v. Elder


                         BACKGROUND

¶2     Brittany and Matt were married in 2008. In early 2015,
Brittany filed a petition for divorce. Later that year, Brittany and
Matt entered into a stipulated agreement that the district court
subsequently adopted in a Decree of Divorce (the Decree). Under
a “Division of Property” heading, the Decree divided the couple’s
real property, vehicles, and other personal property. Matt
received the “marital home along with any accompanying debts
and/or equity.” Of note here, Brittany was awarded a townhouse
“as an equalization of the distribution of the assets.” The Decree
specified that “Matt will be responsible for any loans associated
with the townhouse and have them paid off within 120 days of
signing this Stipulation.”

¶3     A separate provision in the Decree was captioned
“Remedies on Default.” It stated that in “the event that either
party defaults in her or his obligations, or must seek relief from
the Court in the enforcement of the Decree of Divorce, the
nonprevailing party shall be liable to the other party for all
reasonable expenses, including attorneys’ fees and court costs
actually incurred.”

¶4      Matt failed to remove the loan on the townhouse within
120 days. After that 120-day period expired, Brittany filed a
motion for an order to show cause. In this motion, Brittany asked
the court to hold Matt in contempt for failing to comply with
several terms of the Decree—including, of note here, his
obligation to pay off the loan associated with the townhouse. The
district court later issued an order in which it refused to find Matt
in contempt on the townhouse issue, but it did order Matt to
“remove all liens on the townhouse” within 30 days. Matt failed
to comply with this order.

¶5     In 2017, Matt filed for bankruptcy. Later that year, Brittany
sold the townhouse. “[P]ursuant to a short sale agreement she




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made with the bank,” she paid off a discounted loan balance of
$143,165.

¶6     In April 2019, Brittany filed another motion for an order to
show cause relating to the townhouse. In this motion, Brittany
requested a judgment in excess of $180,000, a figure that included
the final loan balance, realtor’s commissions, closing costs, and
repairs that she alleged were necessary to make the townhouse
habitable.

¶7      During a hearing in July 2020, the district court noted that
a domestic relations commissioner had certified for hearing the
issue of “the amount [Matt] should pay [Brittany] due to his
failure to have the liens removed from the townhouse.” At that
point, Brittany’s counsel expressed the desire to conduct
discovery on the issue. In response, Matt’s counsel suggested that
she wasn’t sure if discovery was warranted because there was “no
petition to modify pending,” after which she asked the court to
“clarif[y]” whether it would “allow[] there to be discovery
between the parties.” The court responded that it was allowing
“discovery” on “what amounts, if any,” it should order Matt to
pay Brittany for his “failure to have the liens removed from the
townhouse,” and the court specifically ruled that the parties could
depose each other on this if they wished.

¶8      Brittany subsequently submitted interrogatories, a request
for production of documents, and requests for admission to Matt.
For his part, Matt issued several subpoenas duces tecum to
financial institutions. At a pretrial hearing in November 2020,
Brittany argued that Matt’s responses to her requests for
admission had been inadequate. Over the protest of Matt’s
counsel, the court agreed that Matt’s responses had been
inadequate and ordered Matt to submit more detailed responses.
In the course of that hearing, Matt never argued that he was being
deprived of the opportunity to conduct discovery of his own.




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¶9     A few weeks later, the court held an evidentiary hearing on
the question of “potential damages connected with the failure to
deliver the title” to the townhouse “free and clear of liens.” At that
hearing, both parties presented extensive arguments about their
positions.

¶10 After almost a year of additional litigation, the court issued
a written ruling on Brittany’s motion for an order to show cause.
There, the court first noted that the provision in the Decree that
made Matt “responsible” for any loans associated with the
townhouse had “never been modified.” The court also ruled that
Matt’s bankruptcy had not discharged his obligations relating to
the townhouse.

¶11 The court then found that Matt had “failed to satisfy, pay
off or remove the liens related to the loans associated with” the
townhouse and that Matt’s failure had “forced” Brittany to sell the
townhouse in order to pay off the discounted loan balance. The
court also found that the “actual amount paid by” Brittany to the
bank “to remove the lien” on the townhouse “that was associated
with the loan was $143,165.00.” And it further found that the
“required payment of this amount” by Brittany “was a direct
result of [Matt’s] failure to comply with the provisions of the
Decree of Divorce.” The court accordingly awarded Brittany “the
actual amount she paid the bank, $143,165,” plus post-judgment
interest, though it then determined that she was not entitled to
any additional amounts related to the renovation and sale of the
townhouse. Finally, the court awarded Brittany her “reasonable
expenses, including attorney fees and court costs actually
incurred, related to the issue of [Matt’s] failure to comply with his
obligations” under the Decree.


              ISSUE AND STANDARD OF REVIEW

¶12 Matt challenges the district court’s ruling granting
Brittany’s motion for an order to show cause. In Matt’s view, the


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ruling was not a valid enforcement of the Decree but instead
improperly modified it. “We review procedural issues for
correctness and afford no deference to the lower court’s ruling.”
Berman v. Yarbrough, 

, 

. 2


                            ANALYSIS

¶13 Matt argues that when the district court ordered him to
reimburse Brittany for what she had paid to satisfy the loan on the
townhouse, the court modified the Decree. In Matt’s view,
because Brittany had only filed an enforcement action, not a
modification action, this ruling was procedurally improper. We
disagree with Matt’s assessment of the nature of the ruling.

¶14 District courts enjoy “inherent” authority, “when properly
invoked,” to “enforce a final judgment.” Little Cottonwood Tanner
Ditch Co. v. Sandy City, 

, ¶¶ 23–24, 

(quotation simplified); see also id. ¶ 33 (explaining that district
courts may “make such orders as may be necessary to carry out
and give effect to their decrees” (quotation simplified)). “If a party
fails to comply with a specific directive of a judgment, another
party to the judgment may move to enforce this directive.” Id.
¶ 24. However, a “court’s power to enforce a judgment is confined
to the four corners of the judgment itself.” PacifiCorp v. Cardon,

, 

 (quotation simplified). And a
“motion to enforce cannot be used to take up matters beyond the
contours of the judgment and thereby short-circuit the usual
adjudicative processes.” Berman v. Yarbrough, 

. In his opening brief, Matt surmised that the district court’s
ruling might be read as a contempt ruling, and he then argued
that the ruling was not justified under the court’s contempt
powers. In her responsive brief, Brittany declined to defend the
ruling on this basis, instead insisting that it was a valid
enforcement action. We accordingly address the ruling solely on
those terms.


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                            Elder v. Elder

 (quotation simplified). A motion to enforce is thus
“procedurally improper” where a judgment contains neither an
“unequivocal mandate” nor a “clear directive” enjoining “the
respondent to undertake some action.” 

 (quotation simplified).
This is so because, “without a directive or unequivocal mandate,
there is nothing for the court to enforce.” 

 3

¶15 Separate from the enforcement power, courts in some
instances have power to modify a final judgment that has already
been entered. And we’ve previously recognized that a key
difference between the power to modify and the power to enforce
is that the latter does “not generally extend to modifying the
substantive rights of parties that have previously been agreed to


3. The rule in effect at the time that Brittany filed the motion at
issue allowed her to file an order to show cause, and it further
stated that such a motion could be granted for the “enforcement
of an existing order.” Utah R. Civ. P. 7(q) (2019). The cases we’ve
discussed above referred to a court’s enforcement power.
        Under a rule that became effective in May 2021 and that
remains in place, a motion for an order to show cause in a
“domestic relations action[]” is now referred to as a “motion to
enforce.” See Utah R. Civ. P. 7B(a), (i), (j) (2023). (The same is true
in civil cases more generally under rule 7A of the Utah Rules of
Civil Procedure.) Rule 7B further provides that its process
“replaces and supersedes the prior order to show cause
procedure.” 

 R. 7B(j). As with the old regime, however, the new
one turns on the court’s enforcement power. See 

 R. 7B(a)
(allowing a party to file a motion to “enforce a court order or to
obtain a sanctions order for violation of an order”).
        Neither party in this case has argued that this new rule was
intended to alter the substantive scope of a court’s enforcement
power, much less that the new rule did so in a manner that would
change the outcome of this case. Having surveyed the matter
ourselves, we see no authority suggesting that such a change was
intended.


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or adjudicated.” Robertson v. Stevens, 

, 

. In the family law context, “proceedings to modify a
divorce decree . . . must be commenced by filing a petition to
modify.” Utah R. Civ. P. 106(a). And a petition to modify allows
courts to “revisit many of the provisions contained in a typical
divorce decree, including provisions pertaining to child custody,
child support, alimony, property distribution, and debts,” under
the terms set forth by certain statutes. Robertson, 

.

¶16 Here, Brittany filed a motion for an order to show cause,
which, as noted, was the procedural mechanism at the time for
filing an enforcement action. But Brittany did not file a petition to
modify the Decree. The question before us, then, is whether the
district court moved beyond its enforcement powers when it
ordered Matt to reimburse Brittany for what she had paid to
satisfy the loan on the townhouse. Put differently, the question is
whether this ruling was authorized from within “the four corners
of the judgment,” Little Cottonwood, 

 (quotation
simplified), or whether it instead “modif[ied] the substantive
rights of [the] parties,” Robertson, 

. In our
view, this was indeed an enforcement ruling, as opposed to a
modification, because it was grounded in the four corners of the
Decree itself and did not alter the parties’ substantive rights.

¶17 “We interpret a divorce decree according to established
rules of contract interpretation.” Osborne v. Osborne, 

, 

 (quotation simplified). “When interpreting
a contract, a court first looks to the contract’s four corners to
determine the parties’ intentions, which are controlling.” Bakowski
v. Mountain States Steel, Inc., 

, 

. “If the
language within the four corners of the contract is unambiguous,
then a court does not resort to extrinsic evidence of the contract’s
meaning, and a court determines the parties’ intentions from the
plain meaning of the contractual language as a matter of law.” 

Finally, in “interpreting a contract, we determine what the parties



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intended by examining the entire contract and all of its parts in
relation to each other, giving an objective and reasonable
construction to the contract as a whole.” G.G.A., Inc. v. Leventis,

 (Utah Ct. App. 1989).

¶18 The Decree in question stated that “Matt [would] be
responsible for any loans associated with the townhouse and have
them paid off within 120 days of signing this Stipulation.” And it
further explained that the townhouse was being awarded to
Brittany “as an equalization of the distribution of the assets.” In
this sense, the Decree plainly contemplated that Brittany would
receive the townhouse free and clear. But she didn’t. As indicated,
Matt failed to pay off the loan within 120 days. And when the
court subsequently issued another order requiring Matt to
remove the liens within an additional 30-day period, Matt failed
to comply with that order too.

¶19 In the ruling at issue, the court found that Brittany was
ultimately “forced to sell” the townhouse and “pay the
discounted bank loan balance in the amount of $143,165,” and it
further found that the “required payment of this amount” by
Brittany “was a direct result of [Matt’s] failure to comply with the
provisions of the Decree.” Matt has not challenged these findings
on appeal.

¶20 In light of these findings, the order requiring Matt to
reimburse Brittany was a proper exercise of the court’s
enforcement power. The language of the Decree didn’t narrowly
require Matt to pay a particular amount to a particular bank.
Rather, the provision in question was worded more broadly,
requiring Matt to “be responsible for any loans associated with the
townhouse” and requiring him to “have them paid off within 120
days.” (Emphasis added.) As a result, when Brittany was
subsequently “forced” to pay the loan off herself due to Matt’s
failure to comply with his obligations, the court’s decision to place
that financial burden back onto Matt’s shoulders did nothing



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more than “carry out and give effect” to the Decree’s own terms.
Little Cottonwood, 

 (quotation simplified).

¶21 Matt responds on several fronts, but we find none of them
availing.

¶22 First, Matt argues that under the principles set forth in
Gullickson v. Gullickson, 

, 

, the court’s
order could only have been accomplished through a modification
action. We disagree. In Gullickson, the divorce decree had set forth
a specific arrangement for how to deal with the marital home after
the divorce: namely, the wife was permitted to live in it for a
period of five years, during which period she was responsible for
making the mortgage payments; at the end of the five years, the
husband would be required to either buy out the wife’s share of
the equity in the home or instead sell it and give her half of the
proceeds. Id. ¶ 2. Of some note, the arrangement under which the
wife could remain in the home for five years was “prompted at
least in significant part” by the “ongoing special needs” of the
parties’ son. Id. ¶ 22. When the wife subsequently faced a changed
financial situation, however, she decided to move from the home
earlier than planned. Id. ¶ 4. To facilitate this, she “filed a petition
to modify the divorce decree,” asking the court to require the
husband to either buy her out sooner than was required by the
decree (thus changing the time-period set forth in that decree), or
to instead agree that she could move from the home and rent it
out in order to help her pay the mortgage. Id. ¶ 4. The district court
granted the wife’s request and directed the husband to make that
choice. Id. ¶¶ 6–7, 13.

¶23 On appeal, we considered various questions relating to
whether the district court had properly followed the modification
procedures. Id. ¶¶ 21–25. Drawing on aspects of that discussion,
Matt now suggests that Brittany’s request in this case could only
have been brought as a modification petition. But unlike the wife
in Gullickson, Brittany did not file a petition to modify her divorce



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decree; rather, she filed a motion for an order to show cause, so
she chose an entirely different procedural tack all along.
Moreover, unlike the wife in Gullickson, Brittany did not ask the
court to change any particular term of her divorce decree. Rather,
when Brittany asked the court to order Matt to reimburse her for
the pay-off amount on a loan that Matt was supposed to have paid
from the beginning, Brittany was asking for Matt to be held
“responsible” for that loan, which is what her divorce decree
already required. Thus, Gullickson involved a modification
because the order changed that divorce decree’s terms; by
contrast, this case involved an enforcement action because it
sought to effectuate the divorce decree’s terms. Gullickson
therefore doesn’t mean that Brittany could only proceed through
a modification action.

¶24 Second, Matt argues that because the Decree required him
to pay off any loans within 120 days, and because the amount at
issue had been paid by Brittany much later than those 120 days,
the court’s order effectively changed the Decree’s essential terms,
thus constituting a modification. If the Decree had only said that
Matt was required to pay off a particular loan to a particular bank
within 120 days, Matt’s argument might have a little more force
(although we might still have some skepticism). But as noted, the
Decree wasn’t worded that narrowly. In addition to the language
Matt relies on, the Decree said that “Matt will be responsible for any
loans associated with the townhouse,” and it further noted that
Brittany was being awarded the townhouse “as an equalization of
the distribution of the assets.” (Emphasis added.)

¶25 As indicated, when reading contracts or divorce decrees,
we interpret surrounding provisions in harmony with each other.
The unmistakable intent of the Decree was to require Matt to
assume the financial obligations associated with the townhouse.
When Matt repeatedly failed to do so in a timely manner, the court
had authority to “make such orders as may be necessary to carry
out and give effect” to these provisions. Little Cottonwood, 

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45, ¶ 33 (quotation simplified). Since it’s uncontested on appeal
that Matt’s failure to timely pay off the loan “forced” Brittany to
sell the townhouse, the order in question placed the financial cost
of that sale back onto Matt, thereby making him “responsible” for
the loan, which is what the Decree always required.

¶26 Third, Matt complains of the alleged unfairness that
resulted from the court treating this as an enforcement action, as
opposed to requiring Brittany to proceed through a petition to
modify. According to Matt, if this had been filed as a modification
petition, the rules would have provided him with delineated
discovery powers. In Matt’s view, these discovery powers would
have allowed him to obtain evidence to support various defenses,
such as “whether Brittany could have (or even did) take
mitigating action,” whether Brittany received any benefit from
living in the townhouse between the time of the Decree and when
Brittany sold it, and whether “the marital estate was smaller than
the parties thought when they stipulated to its division.”

¶27 Matt’s concerns seem grounded in the fact that, both before
and after the 2021 amendments, the rules don’t provide for
formalized discovery relating to an enforcement action (whether
filed as an old motion for an order to show cause or instead
through a current motion to enforce). But the question of whether
a party should automatically be entitled to discovery in an
enforcement action is a question best left to those tasked with
drafting the rules. Here, however, Brittany filed a motion for an
order to show cause, and as explained above, that motion was
warranted to enforce the terms of the Decree. We see no basis for
overturning the district court’s ruling simply because the rule
drafters have not provided for automatic discovery in such cases.

¶28 In any event, even if it’s possible that the absence of
automatic discovery might result in some unfairness in some
other enforcement action, Matt is not in a position to complain
about any such unfairness here. As noted, the district court



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specifically allowed the parties to conduct discovery—including
taking depositions, if the parties desired—on “what amounts, if
any,” the court “should order [Matt] to pay [Brittany] due to the
failure to have the liens removed from the townhouse.” In reliance
on that, Matt issued several subpoenas duces tecum to financial
institutions. And Matt never argued below that he was being
deprived of the opportunity to conduct any additional discovery.

¶29 Moreover, Matt also has not persuaded us that any of the
proposed evidence would have constituted a valid defense to
Brittany’s request for relief. Under the Decree, Brittany was
entitled to receive the townhouse without any loans as of 120 days
after the stipulation was signed. Nothing in the Decree obligated
her to take any mitigation efforts if Matt failed to comply with his
obligations to pay off the loans, and any benefits that she received
from living in the townhouse in the ensuing years were benefits
that she was always entitled to receive. As for Matt’s claim that
the parties underestimated the marital estate’s size, we note that
Matt stipulated to the terms of the Decree. If he later thought that
some error had infected that stipulation or the ensuing Decree, he
could have made his own request to somehow alter or modify it.
But what Matt wasn’t entitled to do was simply not comply with
its terms. And in the meantime, Brittany was entitled to ask the
court to enforce the Decree as written, which is what she did.

¶30 In short, we conclude that the district court’s order
appropriately “carr[ied] out and [gave] effect to” the terms of the
Decree. Little Cottonwood, 

 (quotation simplified).
Because of this, the district court did not err in granting Brittany’s
motion for an order to show cause.

¶31 As a final matter, Brittany has requested an award of
attorney fees and costs that she incurred in this appeal, and she
has done so pursuant to the same provision from the Decree that
authorized the fee award she received below. That provision
stated that in “the event that either party defaults in her or his



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obligations, or must seek relief from the Court in the enforcement
of the Decree of Divorce, the nonprevailing party shall be liable to
the other party for all reasonable expenses, including attorneys’
fees and court costs actually incurred.”

¶32 “If the legal right to attorney fees is established by contract,
Utah law clearly requires the court to apply the contractual
attorney fee provision and to do so strictly in accordance with the
contract’s terms.” Vierig v. Therriault, 

, 

 (quotation simplified), cert. denied, 

 (Utah
2023). And as a general matter, “when a party who received
attorney fees below prevails on appeal, the party is also entitled
to fees reasonably incurred on appeal.” Tronson v. Eagar, 

, 

 (quotation simplified). Because
Brittany has prevailed on appeal, she is entitled to her fees
reasonably incurred on appeal. We therefore remand this case to
the district court for determination of those fees and an entry of
that award.


                         CONCLUSION

¶33 The ruling in question was a valid exercise of the district
court’s power to enforce the Decree. As a result, we affirm the
court’s decision and remand for an award of attorney fees
reasonably incurred on appeal.




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