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Nelson v. Nelson – 2023 UT App 38 – Claim Preclusion and Child Support

2023 UT App 38

THE UTAH COURT OF APPEALS

STASHIA NELSON,

Appellee,

v.

ISAAC SCOTT NELSON,

Appellant.

Opinion

No. 20210345-CA

Filed April 13, 2023

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 154100713

Sara Pfrommer, Ronald D. Wilkinson, and Nathan S. Shill, Attorneys for Appellant

Jacob A. Watterson and James C. Jenkins, Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        This case raises issues regarding the claim preclusion

branch of the doctrine of res judicata in the context of divorce proceedings. Two years after Stashia and Isaac Nelson divorced, their circumstances had changed enough that Isaac[1] asked the district court to modify their divorce decree to give him shared physical custody of their children and to lower his monthly child support obligation. Isaac was behind in his support payments, and in response to his petition, Stashia asserted that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶2        The parties engaged in mediation and were able to agree on a new custody and parent-time arrangement and on a reduced monthly child support obligation for Isaac going forward. They presented their agreement to the court, and it entered a modified divorce decree that incorporated the terms of the agreement.

¶3        Stashia then initiated a separate proceeding to collect the child support that Isaac had failed to pay under the original decree. Isaac argued that all child-related financial matters, including his child support arrears, had been resolved in the proceeding to modify the divorce decree and that Stashia was therefore barred under the claim preclusion branch of the doctrine of res judicata from collecting the unpaid support. The court disagreed and ordered Isaac to pay past-due support. In response, Isaac filed a certificate of readiness for trial on an issue that he had not raised previously, namely, whether the reduction in his monthly support obligation should be backdated to when he filed his petition to modify the divorce decree. The district court ruled that there were no issues to certify for trial and entered judgment against Isaac for unpaid support in the amount of $2,835.40 plus interest. Isaac appeals.

¶4        We see no error in the conclusion that claim preclusion does not bar Stashia’s claim for unpaid child support. We also see no error in the district court’s ruling that there were no issues to certify for trial. We therefore affirm.

BACKGROUND

The Parties’ Marriage and Divorce

¶5        Isaac and Stashia married in 2007 and together had two children. Stashia later initiated divorce proceedings, during which the parties reached an agreement that was incorporated into a divorce decree in March 2016.

¶6        The divorce decree provided for the parties’ joint legal custody of the children, while giving Stashia sole physical custody and Isaac parent-time. The decree also ordered Isaac to pay $768 per month in child support, based on Stashia having sole physical custody of the children and on her lack of employment at the time.

Isaac’s Petition to Modify the Divorce Decree

¶7        In June 2018, Isaac petitioned to modify the divorce decree, based on “substantial and material changes in the circumstances of the parties.” In support of modifying the decree’s custody order, Isaac alleged that he had a more “stable residence” and “flexible work schedule” than when the parties divorced; that he was also more able to “provide additional familial support” because he had recently remarried; and that Stashia, on the other hand, had violated several of the custody and parent-time provisions in the divorce decree. Based on these allegations, Isaac requested “increased parent time” and “joint physical custody.”

¶8        In support of modifying the decree’s child support order, Isaac alleged that Stashia had become employed full time and that her increased income, along with the parties’ joint physical custody of the children, if the court awarded it, merited a reduction in his child support obligation.

¶9        In her answer to Isaac’s petition, Stashia alleged, among other things, that Isaac was “not current in his child support obligation.” She then asserted, as one of several affirmative defenses, that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”

¶10 During discovery, the parties exchanged financial declarations outlining their incomes, assets, and expenses, but neither party produced documents or information regarding Isaac’s past child support payments or alleged arrears.

¶11      In October 2018, the parties participated in mediation and stipulated to a temporary modification of the divorce decree. The stipulation, the terms of which were incorporated into an order, contained temporary parent-time provisions and an agreement to participate in a custody evaluation. It did not mention or modify child support, and it concluded by saying: “All issues not specifically addressed herein that have been raised or could have been raised by the parties are, hereby, reserved.”

¶12      After the agreed-upon custody evaluation was completed, the parties again participated in mediation, in May 2019. Later the same day, the district court commissioner held a settlement conference at which the parties orally presented stipulated terms to be incorporated into an amended divorce decree.

¶13      As to custody, the parties’ attorneys told the commissioner that the parties had agreed to “a joint legal, joint physical custody arrangement,” and the attorneys then explained the details of that arrangement. As to child support, they said that the parties had agreed that “[c]hild support would be 600 per month effective June 1st, 2019.” The attorneys then said that the parties had agreed that “all prior orders that are not specifically modified here . . . would remain in full force and effect.”

¶14 Toward the end of the settlement conference, the commissioner asked Isaac and Stashia if they were “willing to accept those terms as a final resolution of the issues that [were] currently pending in [the] matter.” Each responded, “Yes.”

¶15 In October 2019, the court issued an amended divorce decree incorporating the terms the parties had orally agreed to during the settlement conference. The amended decree sets forth the parties’ custody arrangement; contains provisions regarding parent-time; restates the parties’ parenting plan; provides that Isaac’s “child support obligation shall be modified to $600.00 per month effective June 1, 2019”; contains provisions regarding claiming the minor children for tax purposes; and states the parties’ responsibilities regarding medical and childcare expenses. It then provides: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.”

Stashia’s Motion for an Order to Show Cause

¶16 In February 2020, Stashia filed a motion for an order to show cause,[2] alleging that Isaac owed child support arrears that had accrued between September 2016 and February 2020.

¶17 Isaac opposed Stashia’s request for unpaid child support. He noted that in response to his petition to modify the original divorce decree, Stashia “had raised the issue that [Isaac] had child support arrearage.” He pointed to the parties’ statements during the May 2019 settlement conference that they were willing to accept the terms outlined at that conference “as a final resolution of the issues that [were] currently pending in [the] matter.” (Emphasis omitted.) And he pointed to the language of the amended decree that says that the amended decree is “a consolidated order on custody, parent-time, and child related financial matters.” The district court commissioner “reviewed the pleadings on file and . . . considered the evidence and arguments presented” and disagreed with Isaac, finding that “[Stashia] did not waive [Isaac’s] child support arrears at the [May 2019] mediation between the parties or by stipulating to the Amended Decree of Divorce.”

¶18      Isaac objected to the commissioner’s recommendation. He argued that, based on “the principles of the ‘claim preclusion’ prong of the doctrine of res judicata,” the modification proceedings and amended divorce decree had “a preclusive effect” on a claim for child support arrears that accrued before entry of the amended decree. The district court overruled Isaac’s objection and entered judgment against Isaac for child support arrears “in an amount to be determined . . . based on the accountings submitted by the Parties.” After the parties submitted their accountings, the court found that Isaac’s child support arrears totaled $2,835.40.[3]

Isaac’s Certificate of Readiness for Trial

¶19      Isaac then filed, in March 2021, a certificate of readiness for trial, in which he asserted: “This case is ready for trial on the reserved issue of [whether] the June 1, 2019 child support adjustment should be backdated to the date of the filing of the Petition to Modify (June 2018).” Isaac had not previously asked the court to backdate the modified child support order to June 2018.

¶20      The district court ruled that “[t]here [were] no issues to certify for trial” and entered judgment against Isaac in the amount of $2,835.40 plus interest. Isaac now appeals.

ISSUES AND STANDARDS OF REVIEW

¶21      Isaac asks us to reverse the district court’s judgment against him for unpaid child support. He contends that Stashia’s claim for unpaid child support is barred by the claim preclusion branch of res judicata.[4] Ultimately, “[w]hether a claim is barred by res judicata is a question of law that we review for correctness.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622.

¶22      Part of our claim preclusion analysis in this case, however, requires a determination of the intended scope of ambiguous language in the stipulated amended divorce decree. Where the language of a written stipulation is ambiguous, “the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence.” Christensen v. Christensen, 2018 UT App 53, ¶ 6, 420 P.3d 106 (footnote omitted). When a court looks outside the four corners of a written stipulation to determine its intended scope, that determination presents a question of fact, “which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898, cert. denied, 398 P.3d 51 (Utah 2017).

¶23      Isaac also asks us to reverse the district court’s ruling, in response to his filing of a certificate of readiness for trial, that “[t]here [were] no issues to certify for trial.” The legal effect of a certificate of readiness for trial is a question of law, and “[w]e review questions of law for correctness, giving no deference to the ruling of the court below,” see Madsen v. Washington Mutual Bank FSB, 2008 UT 69, ¶ 19, 199 P.3d 898.

ANALYSIS

I. Stashia’s Claim for Unpaid Child Support
Is Not Barred by Res Judicata.

¶24 Isaac contends that the district court erred in allowing Stashia to bring a claim for unpaid child support. As we have noted, the substance of his argument is that Stashia’s claim for unpaid support is barred by the claim preclusion branch of res judicata. See supra note 3. This court has previously observed that, indeed, “[t]he principles of res judicata apply fully in the context of divorce proceedings.” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210 (citing Jacobsen v. Jacobsen, 703 P.2d 303, 305 (Utah 1985)), cert. denied, 4 P.3d 1289 (Utah 2000). But this observation merits explanation.

¶25 Both res judicata and the law of the case doctrine can operate to give an earlier decision on a particular claim or issue preclusive effect when the same claim or issue is raised again. See Utah State Bar v. Rasmussen (In re Discipline of Rasmussen), 2013 UT 14, ¶¶ 17–18, 299 P.3d 1050. A key difference between the two doctrines, however, is that generally “[r]es judicata applies as between multiple cases while the law of the case doctrine applies to successive proceedings within one case.” State v. Waterfield, 2014 UT App 67, ¶ 39 n.12, 322 P.3d 1194, cert. denied, 333 P.3d 365 (Utah 2014).

¶26 This distinction could suggest that in a single divorce case—over which a district court has continuing jurisdiction to enter orders modifying the original decree, see Utah Code § 30-3-5(5)—only the law of the case doctrine would ever apply. To the contrary, however, we have held that res judicata applies as between “[original] divorce actions and subsequent modification proceedings.” Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). Accordingly, in Krambule v. Krambule, 1999 UT App 357, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), we concluded that a petition to modify a divorce decree to require an ex-husband to pay support for a child conceived through artificial insemination without the ex-husband’s knowledge was “barred under the principles of res judicata” since that claim “could and should have been asserted in the original divorce action.” Id. ¶ 16. And in Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988), we upheld on res judicata grounds the denial of a petition to modify a divorce decree to give an ex-wife an interest in her ex-husband’s retirement benefits, which had not been included in the original decree. See id. at 123.

¶27 In other words, we treat an original divorce proceeding and each subsequent proceeding to modify the divorce decree as separate “cases” for res judicata purposes. At the same time, we treat a divorce proceeding leading to a decree or an amended decree and any subsequent proceeding to enforce that decree or amended decree as successive proceedings within the same case. Thus, in this second context, we apply the law of the case doctrine. See Robinson v. Robinson, 2016 UT App 32, ¶¶ 26–29, 368 P.3d 147 (holding, in a proceeding to enforce a stipulated divorce decree, that law of the case barred a husband from relitigating a factual issue decided previously), cert. denied, 379 P.3d 1185 (Utah 2016).[5]

¶28      This appeal is somewhat unusual in that the “first case” for

purposes of res judicata is the modification proceeding and the “second case” is the order to show cause proceeding to enforce the child support order from the original decree. But because the order to show cause proceeding is based on the original decree, it is a separate “case” from the modification proceeding that resulted in the amended decree. We therefore apply the principles of res judicata as we analyze the potential preclusive effect of the amended decree in the order to show cause proceeding.[6]

¶29      “The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion.” Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. “[C]laim preclusion corresponds to causes of action[;] issue preclusion corresponds to the facts and issues underlying causes of action.” Oman v. Davis School Dist., 2008 UT 70, ¶ 31, 194 P.3d 956.

¶30      “Claim preclusion . . . is premised on the principle that a controversy should be adjudicated only once.” Pioneer Home Owners Ass’n v. TaxHawk Inc., 2019 UT App 213, ¶ 41, 457 P.3d 393 (cleaned up), cert. denied, 466 P.3d 1073 (Utah 2020). It “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Hansen v. Bank of N.Y. Mellon, 2013 UT App 132, ¶ 5, 303 P.3d 1025 (cleaned up). “Whether a claim is precluded from relitigation depends on a three-part test.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194.

First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.

Id. (cleaned up).

¶31 Here, it is undisputed that Stashia and Isaac were the parties to both the proceeding on Isaac’s petition to modify the divorce decree—the “first case”—and the proceeding on Stashia’s subsequent claim for unpaid child support under the original decree—the “second case.” It is also undisputed that Isaac’s petition to modify the divorce decree resulted in a final judgment on the merits, in the form of the amended divorce decree. Thus, we focus our analysis on the second requirement of the claim preclusion test: whether Stashia presented or was required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the decree.

A. Stashia did not present a claim for unpaid child support in the modification proceedings.

¶32 The second requirement of the claim preclusion test is satisfied if the claim at issue was presented in a prior action. See Mack, 2009 UT 47, ¶ 29. Isaac argues that Stashia’s answer to his petition to modify the divorce decree presented a claim for unpaid child support. Specifically, he points to Stashia’s allegation that Isaac was “not current in his child support obligation” and to her assertion, as an affirmative defense, that Isaac’s “unclean hands in not being current in his child support obligation” should bar modification of his support obligation.[7]

¶33      However, while Stashia alleged that Isaac was in arrears in

his child support payments, neither that allegation nor the affirmative defense based on that allegation presented a “claim.” “An original claim, counterclaim, cross-claim or third-party claim must contain a short and plain: (1) statement of the claim showing that the party is entitled to relief; and (2) demand for judgment for specified relief.” Utah R. Civ. P. 8(a). Stashia’s answer to Isaac’s petition to modify the divorce decree did not allege how much Isaac owed in unpaid child support or make a demand for relief. We cannot, therefore, say that Stashia’s affirmative defense presented a claim for res judicata purposes. See Airfreight Express Ltd. v. Evergreen Air Center, Inc., 158 P.3d 232, 237 (Ariz. Ct. App. 2007) (holding that “affirmative defenses are not claims” for purposes of “[t]he doctrine of claim preclusion”); cf. Norman A. Koglin Assocs. v. Valenz Oro, Inc., 680 N.E.2d 283, 288 (Ill. 1997) (“A counterclaim differs from an . . . affirmative defense. A counterclaim is used when seeking affirmative relief, while an . . . affirmative defense seeks to defeat a plaintiff’s claim.”).

¶34      This is consistent with our analysis in Berkshires, LLC v. Sykes, 2005 UT App 536, 127 P.3d 1243. In that case, the plaintiffs were poised to purchase and develop multiple parcels of land when the defendants recorded a document purporting to grant an easement that would significantly hinder the anticipated development. Id. ¶ 4. The plaintiffs sued “for slander of title and interference with economic relations, claiming that [the defendants] had intentionally fabricated the [e]asement [d]ocument.” Id. ¶ 6. Late in the litigation, the defendants moved for partial summary judgment, asserting that as a matter of law under the undisputed evidence “Hope Lane, a road running [across the parcels at issue], was a public road.” Id. ¶ 9. The trial court denied the motion on the ground that the defendants had not presented a claim for Hope Lane to be declared a public road because their “original answer merely stated that ‘[a]s a separate and affirmative defense, [the] [d]efendants . . . allege that Hope Lane is a public road,’ without making any further affirmative claim for relief.” Id. (first alteration and omission in original).

¶35 On appeal, the defendants argued that the trial court improperly refused to treat their Hope Lane affirmative defense as a counterclaim. See id. ¶¶ 16–17. We said that among the factors a court could consider when deciding whether to treat an affirmative defense as a counterclaim was “whether the defense as argued or articulated in the pleadings sufficiently states a claim for relief and a demand for judgment as required by rule 8(a) of the Utah Rules of Civil Procedure.” Id. ¶ 18. In concluding that the trial court had not abused its discretion by refusing to treat the Hope Lane affirmative defense as a counterclaim, we explained:

At the heart of the matter here is whether Plaintiffs should have recognized that Defendants’ statement “Hope Lane is a public road” was in reality a counterclaim, though labeled an affirmative defense. Here, the statement on its face is not readily identifiable as a counterclaim; it requests no relief and does not demand judgment. . . . Defendants did not properly plead a counterclaim . . . .

Id. ¶ 19. In sum, although it was in a different context, we have previously concluded that an affirmative defense that requests no relief and does not demand judgment does not present a claim. Our reaching the same conclusion here in the res judicata context “is not much of a jurisprudential leap.” Atkinson v. Stateline Hotel Casino & Resort, 2001 UT App 63, ¶ 19 n.6, 21 P.3d 667.

B. The district court’s finding that the amended divorce decree did not preclude Stashia’s claim for unpaid child support was not clearly erroneous.

¶36      Even if a party does not present a claim in her pleadings or otherwise during litigation, she might still agree to settle that unpled claim with the intent to foreclose its future litigation. If such an agreement becomes the basis of a stipulated decree, the second requirement of claim preclusion is met, and claim preclusion may apply to the settled but unpled claim. See Keith v. Aldridge, 900 F.2d 736, 741 (4th Cir. 1990) (holding, in the context of a “consent judgment,” that “[i]f the parties intended to foreclose through agreement litigation of a claim, assertion of that claim in a later suit, whether or not formally presented in the earlier action, is precluded”); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4443 (3d ed. April 2022 update) (“[Following a consent judgment,] [i]f it is clear that the parties agreed to settle claims that were not reflected in the original pleadings, preclusion may extend to claims that were not even formally presented.”).[8]

¶37      Isaac relies on this principle. He contends that the amended

divorce decree, which was the product of a settlement agreement and stipulation, “expressly and unambiguously resolved” any claim for child support arrears that predated the amended decree. In support, he points to the provision of the amended decree that states: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.” (Emphasis added.) Isaac interprets the phrase “child related financial matters” to mean that the amended decree was an order resolving all child related financial matters, including his child support arrears. But this is not the only plausible reading of this provision.

¶38 The amended decree addresses several child-related financial matters explicitly: the modified child support award, income tax deductions related to the children, health insurance and medical expenses for the children, and childcare expenses. It never mentions child support arrears. Thus, the phrase “child related financial matters” can plausibly be read as encompassing only the child-related financial matters explicitly addressed in the amended decree. Because this provision of the amended decree supports two plausible readings, it is ambiguous. See Moon v. Moon, 1999 UT App 12, ¶ 19, 973 P.2d 431 (“Language in a written document is ambiguous if the words may be understood to support two or more plausible meanings.” (cleaned up)), cert. denied, 982 P.2d 89 (Utah 1999).

¶39 “Ordinarily, we interpret a divorce decree as we would any other written instrument, construing it in accordance with its plain meaning and according no deference to the district court’s interpretation.” Christensen v. Christensen, 2018 UT App 53, ¶ 6,

420 P.3d 106. “But where, as here, the agreement is ambiguous, the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence . . . .” Id. (footnote omitted).

¶40      The district court here considered extrinsic evidence to determine whether Stashia’s claim for unpaid child support was encompassed within the amended decree, and it made a factual finding that the claim for unpaid child support was not encompassed within the decree. Among the evidence considered were the oral representations the parties made during their May 2019 settlement conference and a declaration provided by Isaac, both of which Isaac directed the court to when he opposed Stashia’s motion for an order to show cause. The district court considered this evidence and found that Stashia did not waive her claim for unpaid child support.

¶41      When, as here, a court looks outside the four corners of a stipulated judgment to determine its intended scope, that determination is a determination of fact, which we review for clear error. See Noel v. James, 2022 UT App 33, ¶ 11, 507 P.3d 832 (“The scope of a stipulation presents a question of fact, which we review for clear error.” (cleaned up)); Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (same), cert. denied, 398 P.3d 51 (Utah 2017). And “[f]indings of fact are clearly erroneous only if no reasonable factfinder could review the evidence presented and arrive at the disputed finding.” Blackhawk Townhouses Owners Ass’n Inc. v. J.S., 2018 UT App 56, ¶ 23, 420 P.3d 128.

¶42      We see no clear error in the district court’s finding that the parties’ amended decree was not intended to be preclusive of Stashia’s claim for child support arrears. Isaac’s child support arrears were not mentioned at all during the May 2019 settlement conference. A reasonable factfinder might therefore believe it a stretch to assume that when Stashia and Isaac told the commissioner they were “willing to accept [the] terms [that had been outlined in the settlement conference] as a final resolution of the issues that [were] currently pending in [the] matter,” they would have thought that those issues included Isaac’s alleged child support arrears.

¶43 Moreover, after the parties said that the modified child support obligation would become effective June 1, 2019, they told the commissioner that “all prior orders that are not specifically modified [as outlined in the settlement conference] . . . would remain in full force and effect.” A reasonable view of this evidence is that when the parties accepted the terms of the stipulation “as a final resolution of the issues that [were] currently pending in this matter,” these were the terms that they intended to accept: that the child support order prior to June 1, 2019, as well as any outstanding obligations under it, “would remain in full force and effect.”

C. Stashia was not required to present her claim for unpaid child support in the modification proceeding.

¶44      Even if a claim was not presented or settled in an initial action, the second requirement of the claim preclusion test can be met by showing that the subsequently raised claim “could and should have been raised in the first action.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194 (cleaned up). A subsequent claim could and should have been brought in an earlier action “if [both claims] arise from the same operative facts, or in other words from the same transaction.” Id. ¶ 30. To determine if two claims arise from the same transaction, a court may consider “whether the facts [of each] are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 14, 284 P.3d 622 (cleaned up). But “no single factor is determinative.” Id. (cleaned up). “Therefore, every consideration need not be addressed or considered in every case.” Id.

¶45      Here, Isaac’s claims for modification of the divorce decree were not related in origin to Stashia’s later claim for unpaid child support. Isaac’s claims to modify the divorce decree originated from alleged changes to his work and home life since the entry of the original decree (including his recent remarriage), alleged violations by Stashia of the divorce decree’s custody and parent-time provisions, and Stashia’s recent full-time employment. In contrast, Stashia’s claim for unpaid child support originated from Isaac’s alleged failure to abide by the divorce decree’s child support order. These differing origins suggest that the parties’ respective claims do not arise from the same transaction. See In re Marriage of Potts, 542 N.E.2d 179, 181–82 (Ill. App. Ct. 1989) (observing that “[t]here [was] no significant evidentiary overlap” between a father’s claim for unpaid child support and the mother’s claim for modification of the support obligation and, thus, holding that res judicata did not bar the father’s separate action for unpaid support); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (concluding that a stipulation to amend a divorce decree to reduce the father’s child support obligation was “a totally different and distinct action” from the mother’s later “motion to compel payment of child support arrearages” and, thus, that res judicata did not bar the mother’s later action for arrearages).

¶46 Additionally, neither Isaac nor Stashia conducted discovery related to Isaac’s alleged child support arrears during the modification proceeding, which suggests that it was not their expectation that Isaac’s claims for modification of the original decree and Stashia’s claim for unpaid child support under the original decree would be treated as a single trial unit.

¶47      Moreover, Utah Code section 78B-12-210(9)(a) provides for the filing of a petition to modify a child support order based on a substantial change of circumstances, while our rules require a motion—previously a motion “for an order to show cause,” see Utah R. Civ. P. 7(q) (2020), and now “a motion to enforce order,” see Utah R. Civ. P. 7B—to recover unpaid child support. By providing different procedures for modifying a child support order and enforcing a child support order, our code and rules also implicitly recognize that these two types of actions generally do not arise from the same transaction. Cf. In re P.D.D., 256 S.W.3d 834, 842, 844 (Tex. App. 2008) (reasoning in part that because the Texas Family Code “does not require their joinder,” actions for “delinquent child support” and actions for “modification of . . . future child support obligations” are “separate and definable questions” and the one is not barred by the other under a “transactional approach” to res judicata).

¶48      The differing origins of Isaac’s and Stashia’s respective claims, the apparent expectations of the parties, and the procedural scheme set forth in our code and rules demonstrate that Isaac’s claim for modification of the original child support order and Stashia’s claim for enforcement of the original order did not arise from the same transaction. Thus, Stashia was not required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree.

¶49      Because Stashia neither presented nor settled her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree, and because she was not required to present her claim for unpaid child support during that proceeding, the doctrine of claim preclusion does not apply to bar Stashia’s claim.[9]

II. The District Court Did Not Err by Concluding that There
Were No Issues to Certify for Trial.

¶50      Isaac also argues that “[t]he district court erred when it

refused to allow [him] to counter Stashia’s Order to Show Cause with his request to retroactively apply the child support modification.” His request to retroactively apply the child support modification took the form of a certificate of readiness for trial filed nearly a year and a half after the modification proceeding to which it related had concluded. Because the modification proceeding had concluded, and because Isaac filed no rule 59 or 60(b) motion to alter or relieve him from the resulting judgment—i.e., the amended divorce decree, with its June 1, 2019 effective date for the modified support order—Isaac’s certificate of readiness for trial landed in a legal vacuum and had no legal effect.[10] With no pending proceeding to which retroactive application of the modified support order applied, the district court was correct to conclude that “[t]here [were] no issues to certify for trial.”

CONCLUSION

¶51      Stashia did not present an affirmative claim for child support arrears during the modification proceeding. The district court did not clearly err in finding that Stashia’s claim for those arrears was not encompassed within the modified divorce decree. And Stashia’s claim for those arrears did not arise out of the same transaction as the claims Isaac made in his petition to modify the decree. Accordingly, Stashia’s claim for unpaid child support is not barred by res judicata. Additionally, the district court’s ruling in response to Isaac’s certificate of readiness for trial—that there were no issues to certify for trial—was not in error.

¶52 Affirmed.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

[1] As is our practice, because the parties share the same last name, we use their first names, with no disrespect intended by the apparent informality.

[2] The “motion to enforce order” procedure outlined in rule 7B of the Utah Rules of Civil Procedure has now “replace[d] and supersede[d] the prior order to show cause procedure” in the context of “domestic relations actions, including divorce.” Utah R. Civ. P. 7B(a), (i), (j). A similar “motion to enforce order” procedure outlined in rule 7A now applies in the context of other civil proceedings. See id. R. 7A. In recommending rule 7B, the Utah Supreme Court’s Advisory Committee on the Rules of Civil Procedure left untouched rule 101(k), which addresses motion practice before district court commissioners and still recites requirements for “[a]n application to the court for an order to show cause.” Id. R. 101(k). The committee may wish to revise rule 101(k) to conform rule 101(k)’s provisions to those of rule 7B.

 

[3] Our resolution of this appeal makes determining the portion of this amount that accrued before entry of the amended divorce decree unnecessary.

[4] Isaac does not always frame his argument in terms of “claim preclusion” or “res judicata.” In one section of his principal brief, he asserts that the claim for unpaid child support was “resolved” by the amended divorce decree. In another, he argues that “the issues to which the parties have stipulated [have] become ‘settled’ and ‘not reserved for future consideration.’” And at one point he does explicitly invoke “the ‘claim preclusion’ prong of the doctrine of res judicata.” Regardless of their phrasing, each of these arguments is, in substance, an argument for application of the doctrine of res judicata. See infra ¶¶ 26-28; Mel Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 453 (Utah Ct. App.) (explaining that res judicata “bars the relitigation . . . of a claim for relief previously resolved” (emphasis added)), cert. denied, 769 P.2d 819 (Utah 1988); Res judicata, Black’s Law Dictionary (abridged 6th ed. 1991) (defining res judicata as “a thing or matter settled by judgment” (emphasis added)).

Because Isaac never uses the terms “issue preclusion” or “collateral estoppel” and never cites a case applying that branch of res judicata, and because he did not do so in the district court, we address only the claim preclusion branch of res judicata. See generally 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not raised at trial are usually deemed waived.”); State v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138 (declining to address an inadequately briefed issue).

[5] Application of res judicata in the divorce context might be seen as “distinguish[able]” from its application in other contexts in another way as well. See Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). That is because in the divorce context the preclusive effect of res judicata can be avoided based on “the equitable doctrine that allows courts to reopen [prior] determinations if the moving party can demonstrate a substantial change of circumstances.” Id. In fact, some prior determinations in divorce cases may be reopened on a showing of a material change of circumstances that is less than substantial. See, e.g.Miller v. Miller, 2020 UT App 171, ¶ 18, 480 P.3d 341 (observing that “when modifying parent-time (as opposed to custody), the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody” (cleaned up)). Though this might be seen as a distinguishing feature of res judicata in the divorce setting, it is consistent with our statement that “[t]he principles of res judicata apply fully in the context of divorce proceedings,” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), because a decision based on a changed set of material facts is not a decision on the same question as the one presented previously.

[6] We are not alone in this approach. See, e.g.In re Marriage of Potts, 542 N.E.2d 179, 180–82 (Ill. App. Ct. 1989) (applying res judicata principles to hold that, under the facts of the case, an amended divorce decree that modified a child support obligation did not bar a claim for child support arrears that accrued under the prior decree); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (same).

[7] “The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (cleaned up).

[8] “In Utah, . . . the rules of claim preclusion are ‘virtually identical’ to the federal rules . . . .” Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 9, 393 P.3d 285 (citation omitted).

[9] The district court expressed its ruling against Isaac’s claim preclusion argument by finding that Stashia “did not waive” her claim for unpaid child support. Our ruling is that Stashia neither waived nor forfeited her right to assert that claim. “Though principles of waiver and forfeiture are often used interchangeably, the two concepts are technically distinct.” Reller v. Argenziano, 2015 UT App 241, ¶ 30, 360 P.3d 768 (cleaned up). “Forfeiture is the failure to make the timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” Id. (cleaned up). Stashia did not waive her known right to bring a claim for unpaid support since, as we have concluded, she did not intentionally relinquish it through settlement or otherwise. Nor did she forfeit that right by the issue of failing to timely assert it since, as we have concluded, she was not required to present her claim during the modification proceeding. See id. ¶ 31 (holding that failure to timely amend a complaint to assert a claim for retroactive child support amounted to a forfeiture). We leave for another day the question of whether or how a claim for unpaid child support may be settled without running afoul of the statutory limitation on the waiver of child support claims. See generally Utah Code § 78B-12-109(1) (“Waiver and estoppel [of child support] shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.”); Cahoon v. Evans, 2011 UT App 148, ¶ 3, 257 P.3d 454 (holding that Utah Code section 78B-12-109 “rules out waiver and estoppel in all instances where there is a child support order already in place”).

[10] Isaac makes no attempt to address this procedural reality. Instead, he uses the certificate of readiness for trial as a vehicle to argue that he stipulated to a June 1, 2019 effective date for the modified child support order only “[i]n exchange” for Stashia giving up the right to pursue her claim for child support arrears. But the district court found that the parties did not intend such an exchange, and we have affirmed that finding. See supra ¶¶ 36–43.

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How difficult is it to get a divorce from a spouse who has disappeared?

How difficult is it to get a divorce from a spouse who disappeared +10 years back? No note, no trace, no explanation. If you urgently need to remarry, what processes would one need to prepare for? 

I can’t speak for all jurisdictions, but in Utah (where I practice divorce law), the answer to your question would be: 

  1. It does not matter whether you can find your spouse to serve him/her in person with a summons and complaint for divorce. Why?
  2. Because the law anticipated situations where a potential defendant in a lawsuit might try to hide and avoid service of process in the hope that “If you can’t serve me with the summons and complaint, then you can’t sue me!” How?
  3. By making provision for serving someone who is hiding or avoiding service: 

 Utah Rules of Civil Procedure, Rule 4(b)(5)(A) and (B): 

(A) If the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, if service upon all of the individual parties is impracticable under the circumstances, or if there is good cause to believe that the person to be served is avoiding service, the party seeking service may file a motion to allow service by some other means. An affidavit or declaration supporting the motion must set forth the efforts made to identify, locate, and serve the party, or the circumstances that make it impracticable to serve all of the individual parties. 

(B) If the motion is granted, the court will order service of the complaint and summons by means reasonably calculated, under all the circumstances, to apprise the named parties of the action. The court’s order must specify the content of the process to be served and the event upon which service is complete. Unless service is by publication, a copy of the court’s order must be served with the process specified by the court. 

This means that you could obtain leave from the court to serve your spouse by a certified mailing of the summons and complaint to your spouse’s last known address, or by a having a copy of the summons and complaint delivered by FedEx or UPS to your spouse’s last known address, or by emailing a copy of the summons and complaint to your spouse’s last known e-mail address, or by sending an instant message or text message to your spouse notifying him/her that a divorce action has been filed in court against him/her and directing him/her to obtain and review a copy that is in file with the court, or (although this happens a lot less), publishing the summons in a newspaper of general circulation in the county in which publication is required. 

4. After your hiding/disappeared spouse has been served by one of the alternate means provided in Rule 4(d), if your spouse does not file a responsive pleading within the time given to do so, then you can apply for entry of your spouse’s default and request entry of default judgment against your absentee spouse.  

Utah Family Law, LC | divorceutah.com | 801-466-9277 

https://www.quora.com/How-difficult-is-it-to-get-a-divorce-from-a-spouse-who-disappeared-10-years-back-No-note-no-trace-no-explanation-If-you-urgently-need-to-remarry-what-processes-would-one-need-to-prepare-for/answer/Eric-Johnson-311  

 

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What should I tell my lawyer who says that a motion to dismiss is not real?

What should I say to my lawyer who told me that a motion to dismiss isn’t really a thing so we cannot file one?

It may be that a motion to dismiss is in fact not possible (not permitted by the rules under the circumstances of your case) or not wise under the circumstances (possible, but a bad idea), even though you believe otherwise. a lot of people are familiar with certain legal jargon without knowing what it means, and they often throw it around ignorantly and inaccurately. 

I can’t tell you how many times clients have come to me believing they have rights to do this or rights not to do that, only to find out that their understanding was erroneous. 

A few examples: thinking you have a right to certain documents (or every document known to man) under the “Freedom of Information Act”, believing you don’t have to answer provide requested documents or answer certain questions in a deposition or at trial if they claim that the information sought from them is “private” or “confidential,” believing that because they know the truth/right thing to do, the court must agree with them. 

If you have an idea and your lawyer shoots it down without you understanding why, don’t be afraid to ask your lawyer to explain it to you. If your lawyer can’t do that, your idea may not be so bad (but instead your lawyer may not be up to the task). 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-should-I-say-to-my-lawyer-who-told-me-that-a-motion-to-dismiss-isnt-really-a-thing-so-we-cannot-file-one/answer/Eric-Johnson-311 

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How can I enforce my power when I have final say in joint custody?

My sons father and I have joint custody but I have final say over his well being health and education. How can I enforce my power? 

If you are asking: “How do I enforce in good faith my final say authority over our son’s well-being, health, and education when the other parent and I do not agree?,” then the answer is (depending upon the jurisdiction’s requirements) typically: 

  • go to mediation to try to resolve the dispute, and if that does not work, then 
  • file a motion with the court seeking an order that compels your ex to comply with your final decision-making authority. 

Don’t take this the wrong way, and I realize that there is more than one way to interpret the meaning of your question, but the fact that you would ask how you can “enforce” your “power” without ever expressing any concern for the welfare or best interest of the child raises questions as your motives for exercising that power. A parent wants to exercise power for the sake of lording it over the other parent is clearly unworthy of that power and should be stripped of it for the sake of the child’s welfare and best interest. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/My-sons-father-and-I-have-joint-custody-but-I-have-final-say-over-his-well-being-health-and-education-How-can-I-enforce-my-power/answer/Eric-Johnson-311  

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Sanders v. Sanders – 2021 UT App 122

2021 UT App 122 

THE UTAH COURT OF APPEALS 

KRISTINE L. SANDERS, Appellee, 
v.
TRAVIS JAMES SANDERS, Appellant. 

Opinion 

No. 20200618-CA 

Filed November 12, 2021 

Third District Court, Salt Lake Department 
The Honorable Todd M. Shaughnessy 
No. 014901182 

  1. Grace Acosta, Attorney for Appellant

Steven M. Rogers, Nic R. Russell, Kelly J. Baldwin, 
and Wylie C. Thomas, Attorneys for Appellee 

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred. 

ORME, Judge: 

¶1 Travis James Sanders appeals the district court’s order dismissing his motion brought under rule 60(b) of the Utah Rules of Civil Procedure to invalidate a “renewed” judgment Kristine L. Sanders obtained against him. We reverse and remand to the district court with instructions to consider the motion on its merits. 

BACKGROUND 

¶2 Travis and Kristine divorced in 2001.1 Soon thereafter, Kristine obtained several judgments against Travis. In 2011, the district court renewed these judgments at Kristine’s request. Kristine was unable to fully collect on these judgments, and in January 2019, she again moved to have them renewed. Travis opposed the renewal and moved under rule 60(b) of the Utah Rules of Civil Procedure to set aside the judgments, primarily arguing that he had already satisfied them. The court denied Travis’s 60(b) motion, consolidated the judgments into a single lump-sum judgment, and renewed the judgment for a second time in May 2019. Travis did not appeal this order. 

¶3 Nearly a year later, Travis filed a second 60(b) motion, this time under rule 60(b)(4) seeking to set aside the consolidated judgment as void on the theory that the court lacked jurisdiction under the Renewal of Judgment Act to renew the judgment for a second time. See Utah Code Ann. § 78B-6-1802 (LexisNexis 2018). The district court denied the second motion, ruling that it was “procedurally improper” because “[t]he arguments raised in that motion could and should have been raised in the prior motion.”2 Travis appeals.  

ISSUE AND STANDARD OF REVIEW 

¶4 Travis argues that the district court erred in denying his motion on procedural grounds.3 Normally, “we review a district court’s denial of a 60(b) motion under an abuse of discretion standard of review.” Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480. But when dealing with a rule 60(b)(4) motion seeking to set aside a judgment as void, we review the district court’s decision for correctness. See Migliore v. Livingston Fin., LLC, 2015 UT 9, ¶ 25, 347 P.3d 394. In addition, we review a district court’s interpretation and application of our rules of civil procedure for correctness. Conner v. Department of Com., 2019 UT App 91, ¶ 15, 443 P.3d 1250. Kristine implores us to review the court’s decision for abuse of discretion. But here, given that the district court’s ruling dealt with a rule 60(b)(4) motion to set aside the judgment as void and because the court was interpreting our rules of civil procedure when it ruled Travis’s motion was procedurally improper, we do not grant the district court any discretion, and we review its decision for correctness. Compare Menzies, 2006 UT 81, ¶ 54, with Conner, 2019 UT App 91, ¶ 15. 

ANALYSIS 

¶5 As relevant here, rule 60 of the Utah Rules of Civil Procedure provides as follows: 

(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon just terms, the court may relieve a party or its legal representative from a judgment, order, or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); 

(3) fraud . . . , misrepresentation or other misconduct of an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or vacated, or it is no longer equitable that the judgment should have prospective application; or 

(6) any other reason that justifies relief. 

(c) Timing and effect of the motion. A motion under paragraph (b) must be filed within a reasonable time and for reasons in paragraph (b)(1), (2), or (3), not more than 90 days after entry of the judgment or order or, if there is no judgment or order, from the date of the proceeding. The motion does not affect the finality of a judgment or suspend its operation. 

(d) Other power to grant relief. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment . . . . 

Utah R. Civ. P. 60(b)–(d). 

¶6 The district court dismissed Travis’s second 60(b) motion on the basis that “[t]he arguments raised in that motion could and should have been raised in the prior motion,” thereby rendering the motion “procedurally improper.” Travis argues that the court erred in this ruling because our rules of civil procedure do not prohibit him from bringing a second motion on the ground that the judgment was void due to the court’s lack of subject matter jurisdiction given the terms of the Renewal of Judgment Act. This argument appears to be sound. 

¶7 Kristine disagrees. She defends the district court’s waiver ruling and advances two alternative grounds on which she believes we should uphold the ruling. Her first alternative argument is that Travis’s second motion was simply a motion to reconsider, which is not allowed. Second, she contends that the district court’s ruling can be upheld because Travis failed to file his second motion within ninety days of entry of the judgment as renewed a second time or in a reasonable time as provided in rule 60(c). We first address and reject the court’s ruling that Travis waived his 60(b)(4) argument by not bringing it in his first motion. We then turn to address each of the alternative arguments Kristine believes nonetheless warrant our affirming the district court. 

  1. Waiver

¶8 Travis asserts that rule 60(b) did not prohibit him from bringing his second 60(b) motion in May 2020, which motion was premised on the judgment being void under rule 60(b)(4). Kristine counters by pointing to Utah v. 736 North Colorado Street, 2005 UT 90, 127 P.3d 693, which states that “a party waives the right to bring [additional defenses] if the party does not raise that defense in his initial rule 60(b) motion.” Id. ¶ 11. But 736 North Colorado Street is distinguishable from the case at hand. 

¶9 In 736 North Colorado Street, the State initiated forfeiture proceedings against the petitioner to seize his property. Id. ¶ 2. After unsuccessful attempts to serve the petitioner by mail, the State moved for, and was granted, default judgment. Id. After learning of the default judgment, the petitioner filed a 60(b) motion to set aside the judgment. Id. ¶ 3. As part of his motion, the petitioner argued that the Utah Code “mandated that a notice of seizure be personally served and that the service by mail was improper under Utah Rule of Civil Procedure 4.” Id. In so doing, the petitioner “did not directly refer to or specifically raise a defense based on insufficient service of the complaint.” Id. The district court denied the motion, id. ¶ 4, and the petitioner later filed a second rule 60(b) motion on the ground “that the district court lacked jurisdiction to enter a default judgment against him because he was not personally served with the complaint,” id. ¶ 5. The court denied the second motion, “concluding that [the petitioner] had waived that defense by not raising it in his initial rule 60(b) motion.” Id. 

¶10 Our Supreme Court affirmed the district court’s denial of the second motion. Id. ¶ 14. It noted that while the petitioner “did not articulate which prong of rule 60(b) he brought his motions under, it appears that the motions were rule 60(b)(4) motions to set aside a default judgment because ‘the judgment is void.’” Id. ¶ 3 n.3. It then held that rule 12(h) of the Utah Rules of Civil Procedure “applies to rule 60(b) motions.” Id. ¶ 7. Rule 12(h), in turn, provides, 

A party waives all defenses and objections not presented either by motion or by answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court must dismiss the action. . . . 

Accordingly, the Court held that the petitioner waived his 60(b)(4) argument that the judgment was void due to lack of personal jurisdiction, and therefore he could not bring it in a second motion because “[h]e could have asserted his complaint defense in [the first] motion but did not.” 736 N. Colo. St., 2005 UT 90, ¶ 9. 

¶11 This precedent is readily distinguishable from the case before us. For one thing, the motions in 736 North Colorado Street targeted precisely the same judgment while, in this case, Travis’s motions attacked two separate renewed judgments. His first motion targeted the judgment as initially renewed and was filed before the judgment was renewed for a second time. In this motion, he sought to prevent its second renewal primarily on the basis that it had been satisfied. But his second motion was squarely directed at the judgment as renewed for a second time, on the ground that the applicable statute does not authorize multiple renewals of the original judgment. Thus, Travis could not have waived the arguments he made in his second rule 60(b) motion because Travis’s first motion was brought before the judgment was renewed for a second time, and his second motion came after it had been renewed for that second time and because it was again renewed.4 

¶12 Be all that as it may, 736 North Colorado Street is ultimately distinguishable here because the petitioner in that case attempted to bring a personal jurisdiction argument under rule 60(b)(4) in his second motion, an argument the Court determined the petitioner had waived under rule 12(h) by not bringing it in his initial 60(b) motion. Here, Travis’s second 60(b) motion asserted that the judgment was void under rule 60(b)(4) because the court lacked subject matter jurisdiction given the terms of the Renewal of Judgment Act, which is an argument that Travis could not have waived under the plain terms of rule 12(h). See Utah R. Civ. P. 12(h) (stating that parties do not waive arguments “that the court lacks jurisdiction of the subject matter”). Given this important difference, we hold that Travis did not waive his subject matter jurisdiction argument and could bring it in a second 60(b) motion because waiver under rule 12(h) does not bar subject matter jurisdiction arguments. 

¶13 The district court therefore erred in ruling that because Travis could have argued in his first motion that the court lacked subject matter jurisdiction to renew the judgment for a second time, it was procedurally improper for him to raise that argument in a second motion. Rule 12(h) did not bar such an argument in a second motion, and the court should have addressed Travis’s motion on the merits. 

  1. Motion to Reconsider

¶14 We now turn to Kristine’s first alternative ground. She asserts that we should affirm the district court on the basis that Travis’s second motion was essentially a post-judgment motion to reconsider, which is not permitted in Utah. See Gillett v. Price, 2006 UT 24, ¶¶ 1, 10, 135 P.3d 861. Occasionally, we will affirm a district court’s order on an alternative ground that is apparent from the record, “[b]ut we ha[ve] no obligation to do so.” Scott v. Scott, 2020 UT 54, ¶ 31, 472 P.3d 897. Kristine asserts that Travis’s motion was a motion to reconsider simply because his “second Rule 60 motion asserted the same grounds and no additional facts” and because even though “[t]he analysis of the law was slightly different[,] . . . the substantive grounds of the motion[s] were identical.” Travis responds that his motion was not a motion to reconsider because he raised new and distinct legal arguments. We agree with Travis. 

¶15 Kristine’s “slightly different” characterization of the second motion is incorrect. In Travis’s first motion, he primarily argued that, pursuant to rule 60(b)(5), the judgment as first renewed should not be renewed a second time because he had already satisfied the underlying judgment. He further argued that the district court should use its equitable powers under rule 60(d) to release him from the judgment. In his second motion, filed a year after the judgment was renewed for a second time, he focused on a new legal theory, namely that the judgment as renewed a second time was void under rule 60(b)(4) because, under the Renewal of Judgment Act, the court lacked subject matter jurisdiction to renew it for a second time. Our review of the record shows that this argument never appeared in Travis’s first motion, where he sought relief from the judgment as first renewed and opposed further renewal of the judgment. Thus, we decline to affirm the court’s ruling on this alternative ground because Travis’s second motion was not functionally a motion to reconsider but asserted a new theory for why a subsequently entered judgment, i.e., the judgment as renewed for a second time by the court, should be set aside pursuant to rule 60(b)(4). 

III. Timeliness 

¶16 Kristine argues a second alternative basis on which we can affirm the district court notwithstanding any error in its waiver ruling. Kristine points out that Travis’s second motion came after rule 60(c)’s ninety-day deadline or, in the alternative, that it came so late as to have exceeded a reasonable time. As previously stated, we will occasionally affirm a district court’s order on an alternative ground that is apparent from the record, “[b]ut we ha[ve] no obligation to do so.” Scott v. Scott, 2020 UT 54, ¶ 31, 472 P.3d 897. Although we consider this argument, we ultimately decline to exercise our discretion to affirm on this alternative ground. 

¶17 Rule 60(c) requires that motions to set aside a judgment pursuant to rules 60(b)(1), (2), and (3) must be filed within ninety days “after entry of the judgment or order.” Utah R. Civ. P. 60(c). The rule also prescribes that motions filed pursuant to 60(b)(4), while not subject to the ninety-day rule, “must be filed within a reasonable time.” Id. See In re Estate of Willey, 2016 UT 53, ¶¶ 7, 12, 16, 391 P.3d 171. Thus, because Travis premised his second motion on the ground that the judgment was void under 60(b)(4), it was not subject to the ninety-day limit. But due to the somewhat inconsistent nature of the applicable caselaw on this issue, it is not entirely clear whether even the “reasonable time” limit applies to motions brought under 60(b)(4). 

¶18 In January 2015, our Supreme Court held in Migliore v. Livingston Financial, LLC, 2015 UT 9, 347 P.3d 394, that a defendant’s rule 60(b)(4) motion asserting the judgment was void on the ground that “he was denied due process of law,” which motion was “brought nearly two years after entry of summary judgment, [was] not time barred” because “‘where the judgment is void . . . the time limitations of [former5] [r]ule 60(b) have no application.’” Id. ¶¶ 23–24 (quoting Garcia v. Garcia, 712 P.2d 288, 290 (Utah 1986)). Under this rationale, Travis’s motion would be timely. 

¶19 But less than two years later, in November 2016, the Court issued In re Estate of Willey, 2016 UT 53, 391 P.3d 171, in which it noted that “[i]t is an unsettled question in Utah whether all claims that judgments are void under rule 60(b)(4) are subject to the reasonable time limit imposed by rule 60(c).” Id. ¶ 16. The Court continued: 

Although the language of rule 60(c) states that all motions under paragraph (b) must be filed within a reasonable time, this court has held that “where the judgment is void because of a fatally defective service of process, the time limitations of [r]ule 60(b) have no application.” Garcia v. Garcia, 712 P.2d 288, 290 (Utah 1986). While Garcia and a prior case, Woody v. Rhodes, 23 Utah 2d 249, 461 P.2d 465, 466 (1969), limited their holdings to motions based on a “fatally defective service of process,” we recognize that Garcia continued to state, “there is no time limit on an attack on a judgment as void.” 712 P.2d at 291 (citation omitted). But the language in Garcia advancing the notion that “the requirement that the motion be made within a ‘reasonable time,’ . . . cannot be enforced with regard to [a rule 60(b)(4)] motion” is dicta given the clear holding of the case. Id. (citation omitted). Garcia held only that “where the judgment is void because of a fatally defective service of process, the time limitations of [r]ule 60(b) have no application.” Id. at 290 (emphasis added). Therefore, apart from the dicta in Garcia, this court has not extended the exemption from the reasonable time requirement in rule 60(c) to claims other than those based on “fatally defective service of process.” Id. 

In re Estate of Willey, 2016 UT 53, ¶ 17 (alterations in original) (footnote omitted). The Court then determined that it was “unnecessary for [it] to resolve whether the reasonable time limit applies to all motions made under rule 60(b)(4)” and proceeded to address and reject the motion before it on the merits. Id. ¶¶ 19, 42. 

¶20 In In re Estate of Willey, the Court did not acknowledge or explain Migliore’s seemingly strong embrace of the language in Garcia and its apparent application to all motions brought pursuant to rule 60(b)(4). Therefore, it must be regarded as an unsettled issue whether all motions brought under rule 60(b)(4), aside from those turning on defective service of process, see Garcia, 712 P.2d at 290, are subject to the reasonable time requirement of 60(c), and we cannot rely on the language in Migliore to conclude that Travis’s second motion was not subject to the reasonable time limit imposed by rule 60(c). 

¶21 But just as our Supreme Court did in In re Estate of Willey, we determine that it is unnecessary to resolve this question in this case,6 and we decline to exercise our discretion to rule on this alternative ground. See Scott, 2020 UT 54, ¶ 31. We do so because it is undisputed that the district court did not dismiss Travis’s second motion on the ground that it was filed beyond a reasonable time under rule 60(c) but rather on the erroneous ground that Travis had waived his voidness argument because he could and should have raised it in his first motion. Because this reasoning was incorrect, we believe it best at this juncture that the district court first address the merits of Travis’s second motion free of any concern that his arguments should have been raised in his earlier motion. 

CONCLUSION 

¶22 The district court erred in dismissing Travis’s second motion on procedural grounds because rule 12(h) did not bar Travis from bringing his subject matter jurisdiction argument under rule 60(b)(4) in that motion. We also decline to affirm the district court’s ruling on Kristine’s alternative arguments that Travis’s motion was essentially a motion to reconsider or that it was untimely under rule 60(c). Therefore, we remand the case to the district court for it to consider on the merits the motion to set aside the second renewed judgment on the theory that the judgment was void based on a lack of subject matter jurisdiction pursuant to the terms of the Renewal of Judgment Act. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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Do you flee the country to avoid alimony? Or do you happily comply?

Do you flee the country to avoid alimony? Or do you happily comply?

First, let’s discuss the “option” of fleeing the country to avoid paying alimony. It’s not really an option unless you consider obeying the law optional. In one sense, obeying the law is not optional because the law itself says so and makes provision for its enforcement by those who will not obey it. In another sense, obeying the law is not morally or ethically optional because if everyone treated obedience to law as optional and without adverse consequences for disobedience to it, we’d have anarchy, chaos, and misery.

Second, you have more options than those you listed in your question. If you are divorced and forced to pay alimony to your narcissistic ex-spouse, you not only have the options of 1) fleeing the country to avoid paying or 2) “happily complying”; you can also 3) grudgingly comply or 4) have the option of taking action in court to modify or terminate the alimony award.

The option of taking action in court to modify or terminate the alimony award is contingent on whether you can meet the legal requirements for modification. In Utah, where I practice divorce law, those requirements are either:

  • Unless a decree of divorce specifically provides otherwise, establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another individual, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony (and note that a party paying alimony to a former spouse may not seek termination of alimony under this provision later than one year from the day on which the party knew or should have known that the former spouse has cohabited with another individual); or
  • proving that, based on a substantial material change in circumstances not foreseeable at the time of the divorce, a modification or termination of the alimony award is warranted or necessary. Regardless of whether a party’s retirement is foreseeable, the party’s retirement is a substantial material change in circumstances that is subject to a petition to modify alimony, unless the divorce decree expressly states otherwise.
    • In determining an alimony modification (which could include termination), the income of any subsequent spouse of the alimony payor may not be considered, with the exceptions that the court may consider the subsequent spouse’s financial ability to share living expenses, or if the court finds that the payor’s improper conduct justifies that consideration, or if the court finds some other compelling reason to do so.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Youre-divorced-and-forced-to-pay-alimony-to-your-narcissistic-ex-spouse-Do-you-flee-the-country-to-avoid-it-If-so-where-or-do-you-happily-comply/answer/Eric-Johnson-311?prompt_topic_bio=1

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Can I sell or trade in the family car while divorce proceedings are pending?

Can I sell or trade in the family car while divorce proceedings are pending?

How would a spouse in process of divorce go about trading her van that is in both spouses name, if the other spouse is uncooperative? Would surrendering her van to the bank be an alternative?

If you owe more on the van than it is worth and don’t depend upon the van for essential transportation needs, then if you were to sell the van such that you’d be left with just the loan deficiency (the difference between the amount the van was worth or sold for and the remaining balance of the loan), you’d probably not be punished. It would be hard for anyone to argue or for a court to conclude that by getting rid of a van worth less than the loan encumbering it you destroyed, dissipated, or diminished an “asset” that had a negative value. And if your spouse agrees (get it in writing!) you can sell the van, you’re fully in the clear.

Bear in mind, however, that many states have an “ATRO” rule (automatic temporary restraining order) that provides that in every divorce action that concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life. Violation of this rule can result in you being sanctioned for contempt of court. Other states that don’t have ATROs in divorce cases can still provide for the judge to enter a restraining order at the outset of a divorce case that, among other things, restrains you and your spouse from transferring or disposing of any marital property without the written consent of the other party or an order of the court.

Also bear in mind that if your credit is already bad and you won’t be able to qualify for a new loan for a replacement vehicle, you may be better off paying the loan for a vehicle you have in hand. And if 1) your spouse depended on using that van to get to work or the doctor or the store, etc., 2) your spouse does not want the van sold, and 3) by selling the van you would deprive your spouse of his/her only means of transportation, the court would likely frown on that and order you to provide or pay for a replacement vehicle.

The safest way to sell off the van or trade the van in for a different vehicle is to move the court (file a motion with the court) for permission to sell the van or trade the van in for a different vehicle. Now just because you filed the motion does not necessarily mean the court will grant that motion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-would-a-spouse-in-process-of-divorce-go-about-trading-her-van-that-is-in-both-spouses-name-if-the-other-spouse-is-uncooperative-Would-surrendering-her-van-to-the-bank-be-an-alternative/answer/Eric-Johnson-311

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How Do I Get My Ex Prosecuted for Custodial Inteference?

QUESTION:

What can I file in court for custodial interference? Is it just a matter of filing a motion for order to show cause? Or is there more to it?

ANSWER:

Custodial interference is a crime, so you cannot file a custodial interference action yourself (only a prosecutor can do that). The custodial interference law is found at Utah Code § 76-5-303.

To get the ball rolling on a custodial interference prosecution you need to report the custodial interference to the police or to the local county or city attorney. It almost certainly won’t do you any good, however. Why? Because the police and prosecutors hate the custodial interference law. No, really. I’m not kidding. Rarely, rarely, rarely will the police make an arrest or issue a citation for custodial interference, and rarely will the prosecutor file charges. They simply refuse to enforce the law. “Oh,” you may say, “but my case is so egregious that the police will surely help me.”

No, they won’t.

Is that legal? No. Is that right? No. But they get away with it.

Don’t believe me? Call the police and/or prosecutor; tell them your story. See if they do anything.

You can, however, file against your ex a motion for order to show cause as to why he or she should not be held in contempt of court for his noncompliance with parent-time  and/or custody orders. Utah law has specific laws that provide for sanctions for parents who fail or refuse to comply with custody and/or parent-time orders:

Utah Code § 78B-6-316. Compensatory service for violation of parent-time order or failure to pay child support.

(1) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.

(2) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.

(3) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.

(4) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.

(5) If a court finds by a preponderance of the evidence that an obligor, as defined in Section 78B-12-102, has refused to pay child support as ordered by a court in accordance with Title 78B, Chapter 12, Utah Child Support Act, the court shall order the obligor to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.

(6) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.

(7) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.

(8) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.

(9) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.

There are also these sanctions available to the court to impose for contempt of court:

Utah Code § 78B-6-310.  Contempt — Action by court.

(1) The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.

(2) A fine imposed under this section is subject to the limitations of Subsection 76-3-301(2).

 Utah Family Law, LC | divorceutah.com | 801-466-9277

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