Griffith v. Griffith
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Janna Griffith,
Plaintiff and Petitioner,
v.
David Gary Griffith,
Defendant and Respondent.
No. 981462
F I L E D
August 27, 1999
1999 UT 78
---
Third District, Tooele County
The Honorable Lee A. Dever
Attorneys:
J. Franklin Allred, Salt
Lake City, for plaintiff
Robert M. McDonald, Salt
Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
ZIMMERMAN, Justice:
¶1
We granted Janna Griffith's
("Janna") petition for a writ of certiorari to review the Utah Court of
Appeals' decision in her case. Janna argues that the court of appeals erred
in affirming the trial court's: (i) grant of rule 11 sanctions; (ii) attorney
fees award to her husband, David Griffith ("David"), based on Judge Rokich's
recusal; (iii) assessment of David's income for purposes of alimony and
child support; (iv) alimony award; (v) property distribution; and (vi)
decision that each party should be responsible for their remaining attorney
fees. We will address the first three issues Janna has raised but will
not address the remaining issues as we find them to be wholly without merit.
¶2
This case began when Janna
filed for a divorce from David on September 14, 1994. There were two separate
incidents that occurred during the trial of the case that give rise to
the first two issues we address: the award of attorney fees related to
the first day of trial to David, and what the court of appeals referred
to as rule 11 sanctions against Janna and her attorney in connection with
a motion to disqualify David's lawyer. We will describe those incidents
before addressing any of the issues on the merits.
¶3
The first incident relates
to Judge Rokich's recusal after the first day of trial. The case was initially
assigned to Judge Rokich. On the merits, one of the central issues was
Janna's claim that David was voluntarily underemployed and that the court
should impute to him additional income, the effect of which would be to
raise the likely award of alimony and child support. David's defense was
that he had given up prior part-time side work because of his brother's
illness and his father's civic activities, which took David's brother and
father away from the family business. When the case came up for trial,
and before witnesses were called, Judge Rokich informed the parties that
he had had a conversation recently with Paul Griffith, David's brother.
Paul was to be called as a witness on the question of underemployment.
Judge Rokich told the parties and their counsel that Paul had telephoned
him at their mutual physician's suggestion to discuss a treatment that
Paul was receiving for an ailment from which they both suffered and which
Judge Rokich was considering. After questioning the judge about the conversation,
neither attorney voiced objection to his presiding over the trial. Witnesses
were then called and testimony taken. However, at the beginning of the
second day of trial, Janna's attorney, J. Franklin Allred ("Allred"), questioned
Judge Rokich's impartiality based on the conversation he had had with Paul.
Allred stated that he believed Judge Rokich had received information from
Paul that "would have been offered in trial under oath." Allred stated
that if the judge were to grant a pending motion of Allred's that was aimed
at barring Paul from testifying on David's behalf, Allred would be satisfied
to have Judge Rokich preside over the trial. Judge Rokich recused himself,
stating that Allred's questions and the request to bar Paul's testimony
"colored th[e] whole case" and cast a shadow of impropriety over the proceedings.
After recusing himself, Judge Rokich entered a judgment jointly against
Janna and Allred for $4,542 for the attorney fees incurred by David during
the first day of trial and for duplicative work that would be necessary
to prepare for the now-postponed trial. His order was based on a factual
finding that the questioning of his impartiality and the motion to bar
Paul's testimony were made in bad faith.
¶4
Following Judge Rokich's
recusal, the case was transferred to Judge Dever. Some months later, at
the conclusion of the trial on the merits, and upon entry of findings of
fact and conclusions of law in February of 1997, Judge Dever ratified Judge
Rokich's attorney fees judgment and ordered Janna and Allred to pay David
$4,524. Judge Dever found that Rokich's order was appropriate given that
Allred had not questioned Judge Rokich's impartiality until the second
day of trial.
¶5
The second incident relates
to the representation of David by Robert McDonald ("McDonald"). In November
of 1994, McDonald entered his appearance on behalf of David. Over thirteen
months later, Allred filed a motion to disqualify him based on the fact
that McDonald had represented Allred in divorce proceedings fifteen years
earlier and had been privy to sensitive personal information about him.
The motion came before Judge Dever and was found to be without merit. David
then filed a motion for rule 11 sanctions against Janna and Allred. In
February of 1997, when Judge Dever filed his trial findings of facts and
conclusions of law, he held Janna and Allred responsible for the attorney
fees incurred by David in defending against Janna's meritless motion to
disqualify McDonald. Judge Dever did not say he was basing this order on
rule 11.
¶6
The final issue we address
today relates to Judge Dever's finding on the merits that David was not
voluntarily underemployed, and his refusal to impute income to David beyond
his salary at Christiansen & Griffith ("C&G"), his family's construction
firm.
¶7
Janna appealed the above
three rulings, inter alia, to the court of appeals and it
affirmed. We then granted certiorari.
¶8
The first issue we address
is the court of appeals' affirmance of what it characterized as the trial
court's "rule 11 sanctions" against Janna and her attorney, Allred. The
court of appeals affirmed, finding the award justified by the trial court's
findings that the motion was made in bad faith and was meritless. The court
of appeals stated that appellate courts can only overturn an award of attorney
fees based on a finding of bad faith if the trial court abused its discretion,
and it found no such abuse. See Griffith v. Griffith, 959 P.2d 1015, 1021 (Utah Ct. App. 1998). Janna contends that the court of
appeals applied the wrong standard of review to a rule 11 sanction. If
it had applied the correct standard, Janna asserts, it would have overturned
the award of fees. We agree with Janna in part, but affirm the sanctions
on alternative grounds.
¶9
First, the court of appeals
did not sufficiently address the standard of review to the extent it treated
Judge Dever's imposition of fees as having been done under rule 11.(1)
The court of appeals did not determine whether the imposition of
sanctions under rule 11 was appropriate. This is not to say the court of
appeals applied the wrong standard of review. As we stated in Barnard
v. Sutliff, 846 P.2d 1229, 1234-35 (Utah 1992), the court of appeals
correctly stated in Taylor v. Estate of Taylor, 770 P.2d 163, 171
(Utah Ct. App. 1989), that there are different standards of review for
different aspects of a rule 11 analysis. In this case, the court of appeals
skipped directly to the question of whether the amount of sanctions was
appropriate rather than first determining whether the imposition of sanctions
was appropriate. See id.
¶10
The proper standard of review
was set forth in Sutliff. Different aspects of a rule 11 determination
are reviewed under different standards; the trial court's ultimate conclusion
that rule 11 was violated is reviewed under a correction of error standard.
See id. at 1234-35. More particularly, we employ three different
standards of review in considering a trial court's rule 11 determination,
depending on the issue being considered. The trial court's findings of
fact are reviewed under a clearly erroneous standard; its ultimate conclusion
that rule 11 was violated and any subsidiary legal conclusions are reviewed
under a correction of error standard; and its determination as to the type
and amount of sanctions to be imposed is reviewed under an abuse of discretion
standard. See id. at 1233-35. The court of appeals' application
of the abuse of discretion standard to the trial court's determination
that rule 11 was violated was therefore error. Applying the correct standard,
we first consider the trial court's findings of fact. The trial court found
that the fees charged by David's attorney in defending against the motion
to disqualify him were necessary and that the time devoted to the defense
was reasonable. This finding has evidentiary support and would survive
appellate review under the clearly erroneous standard. The trial court
also made a factual finding that:
Plaintiff's Motion
to Disqualify Defendant's Attorney filed on January 4, 1996, was not well
grounded in fact or warranted by existing law or a good faith argument
for the extension, modification or reversal of existing law, and was filed
for an improper purpose to harass Defendant and cause unnecessary delay
and needless increase in the costs of litigation.
We conclude that this purported
factual finding, drafted as it was by counsel for the prevailing party,
simply paraphrasing the language of rule 11, and standing by itself without
any detailed factual findings particularizing its conclusions is insufficiently
specific as a matter of law to support the imposition of rule 11 sanctions.
We have said that a trial court is required to make explicit findings of
fact in support of its legal conclusions. See Willey v. Willey,
951 P.2d 226, 230 (Utah 1997). This is particularly necessary in the rule
11 area. The law requires that a trial court make a series of specific
factual findings as a predicate for concluding that the rule has been violated,
and then must determine the appropriate sanction. The trial court's findings
and conclusions must reveal the court's reasoning clearly enough that an
appellate court can apply the appropriate standard of review to each part
of the trial court's ruling. What we have before us is plainly insufficient
for that purpose. Therefore, Judge Dever's order cannot support rule 11
sanctions.
¶11
This is not the end of the
matter. Where an "appellate court determines that findings of fact are
insufficient to support a necessary legal conclusion, the appellate court
will normally remand the matter for further proceedings." Jeffs v. Stubbs,
970 P.2d 1234, 1242 (Utah 1998). However, when we look closely at the findings
and conclusions, it becomes apparent that although the parties viewed this
as an award of fees under rule 11, apparently, because that is what was
prayed for, Judge Dever did not.
¶12
Judge Dever had McDonald
draft the findings of fact and conclusions of law in this case. McDonald
proposed a conclusion of law that the motion to disqualify was "in violation
of Rule 11." This was consistent with McDonald's motion for sanctions.
Judge Dever changed McDonald's original draft to state only that the motion
was "without merit." Thus, we conclude that Judge Dever did not purport
to act under rule 11, but rather exercised the court's inherent powers
to impose monetary sanctions on an attorney for wasting judicial resources
when he granted attorney fees to David based on Janna's meritless motion
to disqualify McDonald.
¶13
This inherent power is well
established. As this court noted nearly a century ago:
It is undoubtedly
true that courts of general and superior jurisdiction possess certain inherent
powers not derived from any statute. Among these are the power to punish
for contempt, to make, modify, and enforce rules for the regulation of
the business before the court, . . . to recall and control its process,
to direct and control its officers, including attorneys as such, and to
suspend, disbar, and reinstate attorneys. Such inherent powers of courts
are necessary to the proper discharge of their duties. . . .
The summary jurisdiction which the court has over its attorneys as officers of the court . . . is inherent, continuing, and plenary . . . and ought to be assumed and exercised . . . not only to maintain and protect the integrity and dignity of the court, to secure obedience to its rules and process, and to rebuke interference with the conduct of its business, but also to control and protect its officers, including attorneys. In re Evans, 42 Utah 282, 130 P. 217, 224-25 (Utah 1913) (cited in Barnard v. Wasserman, 855 P.2d 243, 249 (Utah 1993) ("[C]ourts of general jurisdiction . . . possess certain inherent power to impose monetary sanctions on attorneys who by their conduct thwart the court's scheduling and movement of cases through the court.")).
¶14
Like the attorney fees in
Wasserman, the attorney fees Judge Dever awarded in this case were
a sanction to "compensate for delay, inconvenience and the expense resulting
from [the attorney's] behavior." See Wasserman, 855 P.2d
at 248. Here, the trial court found that the "legal services performed
by Defendant's attorney in opposing [the motion] were necessary and the
time devoted to each service was reasonable." It further found that the
hourly rate charged was reasonable. In light of these findings regarding
the reasonableness of the fee, and the meritless nature of the motion,
we uphold the grant of attorney fees to David in the amount of $2,588.50
for defending against the motion to disqualify his attorney. We further
note that these fees were incurred by David as a result of Janna's attorney's
behavior. Therefore, Allred should pay these fees to David rather than
Janna. See id.
¶15
We now turn to the second
issue on appeal, whether the court of appeals erred in affirming the award
of attorney fees to David based on the proceedings surrounding Judge Rokich's
recusal. As noted above, Judge Dever's findings of fact and conclusions
of law specifically incorporated Judge Rokich's findings of fact and conclusions
of law, including the finding that Allred's questioning of the judge's
impartiality was done in bad faith and that Janna and Allred should be
held jointly and severally liable to David for $4,542 in attorney fees.
¶16
The court of appeals found
that Judge Dever properly relied on Judge Rokich's findings to determine
that an award of attorney fees was appropriate. We agree. For the same
reasons that Judge Dever had authority to award attorney fees for the meritless
motion to disqualify McDonald, he also had authority to award attorney
fees based on the waste of the court's and the parties' resources caused
by Allred's waiting a day before questioning Judge Rokich's impartiality
and by conducting his questioning in such a manner as to precipitate the
recusal. SeeWasserman, 855 P.2d at 248-49. Therefore, we affirm
this award. We also hold that because it was Allred's actions that wasted
the court's time, he, rather than Janna, should pay the fees to David.
See id. at 248.
¶17
We turn to the final issue
we address today, whether the court of appeals erred in affirming the trial
court's assessment of David's income for purposes of alimony and child
support. On a writ of certiorari, we review the decision of the court of
appeals rather than that of the trial court. SeeWilley, 951 P.2d
at 230 (citing Butterfield v. Okubo, 831 P.2d 97, 101 n.2 (Utah
1992)). The court of appeals found no abuse of discretion in Judge Dever's
fixing of David's income. SeeGriffith, 959 P.2d at 1018-20. The
court of appeals applied the correct legal standard. A trial court's determination
of alimony and child support are reviewed for an abuse of discretion. Seeid.;
Savage v. Savage, 658 P.2d 1201, 1205 (Utah 1983). Therefore, the
only issue before us is whether the court of appeals erred in finding no
abuse of discretion.
¶18
The trial court's determination
of David's income addressed the following factual matters: David's side
jobs, his bonus income, and his use of the company car. The court of appeals,
in considering David's past side-job income, held that the trial court
was permitted to take into account both his historical and current earnings
to determine whether David was underemployed. See Hill v. Hill,
869 P.2d 963, 965-66 (Utah Ct. App. 1994). The trial court concluded, after
considering the conflicting evidence, that David was not voluntarily underemployed.
It based this legal conclusion on findings that: (i) David had stopped
performing the side jobs before the couple separated; (ii) David worked
fifty hours per week at a demanding job; (iii) C&G appropriately compensated
David; and (iv) David's extra work was done to keep the family firm viable.
Considering these factual findings, we affirm the court of appeals' conclusion
that the trial court did not abuse its discretion in finding that David
was not voluntarily underemployed.
¶19
Addressing David's bonus
income, the trial court concluded that it was appropriate to average David's
bonus income over several years. The court of appeals was correct in stating
that trial courts have broad discretion in selecting an appropriate method
of assessing a spouse's income and will not be overturned absent an abuse
of discretion. See Griffith, 959 P.2d at 1019. The trial
court's decision to average the bonus income was based on its factual findings
that David's receipt of a bonus was based entirely on C&G's profitability
and that his bonus income had ranged from $15,000 to zero over a five-year
period. Given these findings, the court of appeals was correct in concluding
that the trial court did not abuse its discretion in deciding to average
the bonus income.
¶20
Finally, Janna argues that
David's use of the company car should be considered income for purposes
of alimony and child support. However, the trial court refused to permit
her to offer a witness who would testify as to the value of the use of
the car. The trial court had ordered the exchange of witness lists to be
complete by July 26, 1996, but Janna's attorney failed to timely notify
opposing counsel that he intended to call a witness on this subject. For
that reason, the trial court refused to allow the witness to testify. The
court of appeals found that the trial court did not abuse its discretion
in refusing to allow the witness to testify. As we stated in DeBry v.
Cascade Enterprises, 879 P.2d 1353, 1361 (Utah 1994), the trial court
has the necessary discretion to manage its cases and may set dates for
the exchange of witness lists. See id.; Utah R. Civ. P. 16.
If a party or its attorney fails to obey an order for the exchange of such
lists, the trial court may "make such orders with regard thereto as are
just." Utah R. Civ. P. 16(d). The order refusing to permit the witness
to testify is such an order and is a reasonable response to the failure
to comply with the court's managerial plan. Therefore, we affirm the court
of appeals' ruling that evidence regarding the imputed income from the
use of the company car was properly excluded.
¶21
In sum, we affirm the court
of appeals' ruling regarding David's income, and the attorney fees awards,
based on both Judge Rokich's recusal and the motion to disqualify David's
attorney. We have considered the remaining issues raised by Janna and find
them to be without merit. We therefore affirm.
---
¶22
Chief Justice Howe, Associate
Chief Justice Durham and Justice Russon concur in Justice Zimmerman's opinion.
¶23 Justice Stewart
concurs in the result.
1. Rule 11 states in relevant part: (b) Representations to court. By presenting a pleading, written motion, or other paper to the court, . . . an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law;
. . . . Utah R. Civ. P. 11(b)(1), (2).
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