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Tag: Rule 60(b)

Do you have any experience on how to challenge a void judgment in a family court? 

Thanks for asking such a good question. 

The answer, as it applies in the jurisdiction where I practice divorce and family law (Utah), is found in Utah Rules of Civil Procedure 60(b)(4): 

Rule 60. Relief from judgment or order. 

(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: 

***** 

(b)(4) the judgment is void[.] 

(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. 

There are other ways to obtain relief from a judgment under Rule 60(b) when the basis for seeking relief from the judgment is other than the judgment being void, and rule 60 itself acknowledges: 

(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, order or proceeding or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. 

 

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

(80) Eric Johnson’s answer to Do you have any experience on how to challenge a void judgment in a family court? – Quora 

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Horne v. Horne – 2022 UT App 54 – 60(b) motion to set aside

2022 UT App 54

THE UTAH COURT OF APPEALS

REBECCA A. HORNE, Appellee,

v.

TODD D. HORNE, Appellant.

Opinion

No. 20200845-CA

Filed April 28, 2022

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence

No. 194905732

Mary C. Corporon and Kristen C. Kiburtz, Attorneys for Appellant

Marco C. Brown and A. Leilani Whitmer, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DIANA HAGEN and RYAN D. TENNEY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Todd D. Horne appeals the district court’s denial of his motion to set aside the stipulated decree of divorce entered in his divorce from Rebecca A. Horne. Because we determine that Todd did not preserve the challenge he raises on appeal, we affirm.

BACKGROUND

¶2 Todd and Rebecca were married in 2014 and have one child together. Rebecca is a lawyer and initiated divorce proceedings based on allegations that Todd sexually assaulted her while she was sleeping. According to Rebecca, Todd admitted to her that he had done this on several occasions.

¶3 According to Todd, between June and September 2019, as the parties were contemplating divorce, Rebecca told him “multiple times that she intended to report him to authorities and that he would be charged criminally for felony sexual assault, that his name would be listed on the sex offender’s registry, that he would lose his job and his reputation along with it, and that he would go to jail or prison … if he contested at all what she wrote in the divorce documents.” Rebecca filed for divorce on September 27, 2019. Todd hired an attorney on October 15, and that day, the attorney filed an appearance with the court. According to Todd, Rebecca was “livid” when she learned he had hired an attorney. That same day, Rebecca filed a police report alleging that Todd had sexually assaulted her. According to Todd, Rebecca then “pressured him to sign” the divorce settlement she had drafted and to discharge his attorney. Todd complied. Rebecca then informed the police that she “no longer wish[ed] to pursue criminal charges” and requested that they close the case. The final decree of divorce was signed in November.

¶4 Seven months later, in June 2020, Todd filed a motion in district court to set aside the divorce decree pursuant to rule 60(b)(6) of the Utah Rules of Civil Procedure. The grounds Todd asserted as a basis for setting aside the decree were that Rebecca “extort[ed] and blackmail[ed]” him “until he signed the stipulation, by advising him that she would make and pursue a false police report against him.” He asserted that he agreed to the stipulation only as a result of this “duress” and that the resulting orders in the decree of divorce “as to child custody and as to property division, child support, and alimony were grossly unjust.”

¶5 The district court denied Todd’s motion after determining it was untimely under rule 60(b). Although Todd’s motion had relied on rule 60(b)(6)—“any other reason that justifies relief”—which requires that the motion be filed “within a reasonable time,” the court determined that the reasons Todd actually asserted to justify setting aside the decree fell under rule 60(b)(3)—“fraud … , misrepresentation or other misconduct of an opposing party”—which requires that the motion be filed “not more than 90 days after entry of the judgment or order.” Utah R. Civ. P. 60(b)–(c). Accordingly, because Todd filed his motion more than ninety days after entry of the decree of divorce, the court declined to set it aside. Todd now appeals.

ISSUE AND STANDARD OF REVIEW

¶6 Todd argues that the district court should have determined that his motion was based on rule 60(b)(6) of the Utah Rules of Civil Procedure rather than rule 60(b)(3) because the court’s failure to weigh the equities of the stipulation was an independent ground for relief. “A district court’s determination that a motion is a rule [60(b)(3)] motion rather than a rule 60(b)(6) motion is a conclusion of law, which we review for correctness.” Yknot Global Ltd. v. Stellia Ltd., 2016 UT App 132, ¶ 13, 379 P.3d 36. However, “[w]e generally do not address unpreserved arguments raised for the first time on appeal.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683.

ANALYSIS

¶7 Rule 60(b) of the Utah Rules of Civil Procedure allows a party to be relieved of a judgment for several different reasons. See Utah R. Civ. P. 60(b). Subsection six of the rule provides that a party may be relieved from a judgment for “any other reason that justifies relief” from the operation of the judgment. Our supreme court has explained that this “catch-all” provision of rule 60(b) “is meant to operate as a residuary clause.” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480 (quotation simplified). Because rule 60(b)(6) permits a court to relieve a party from judgment only if the party alleges “any other reason justifying relief from the operation of the judgment,” it “may not be relied upon if the asserted grounds for relief fall within any other subsection of rule 60(b).” Id. (quotation simplified); see also id. (“[T]he grounds for relief under 60(b)(6) are exclusive of the grounds for relief allowed under other subsections.”). In fact, rule 60(b)(6) is to be “sparingly invoked and used only in unusual and exceptional circumstances.” Id. (quotation simplified). A movant may not “circumvent[ ] the time limit applicable to motions based on reasons listed in subparagraphs (1), (2), and (3) by repackaging the claim as one under subparagraph (6).” Thompson v. Wardley Corp., 2016 UT App 197, ¶ 18, 382 P.3d 682.

¶8 To the district court, Todd argued that he was “coerced under duress and extorted into signing the settlement documents” and that this “duress” provided a basis under rule 60(b)(6) to be relieved of the custody and property division provisions in the decree. As noted, the district court rejected Todd’s argument and determined that duress fell under rule 60(b)(3). See Utah R. Civ. P. 60(b)(3) (identifying “fraud … , misrepresentation or other misconduct of an opposing party” as a ground supporting a motion to set aside). In other words, his “motion, though ostensibly based on subparagraph (6), was in substance merely a repackaged motion for relief under subparagraph (3).” See Thompson, 2016 UT App 197, ¶ 18, 382 P.3d 682. Todd does not renew his argument that duress falls under rule 60(b)(6).

¶9 Instead on appeal, Todd argues that although Rebecca’s alleged fraud and duress justified setting the decree aside, he also alleged an “independent ground” under rule 60(b)(6), not fully considered by the district court, that would have allowed relief from the decree: that because “the District Court did not comply with its non-discretionary statutory obligation to consider the best interests of the child and the reasonableness and fairness of the property distribution” in signing the stipulated decree, the decree should be set aside. See Utah Code Ann. § 30-3-5(1) (LexisNexis 2019) (outlining the court’s discretion to make “equitable orders relating to the children, property, debts or obligations, and parties” in a decree of divorce); id. § 30-3-10(2) (outlining the court’s responsibility to “consider the best interest of the child” in determining custody and parent-time). Rebecca, however, contends that Todd did not raise this specific argument below and it was therefore not preserved for appellate review. We agree.

¶10 This court’s preservation requirement is well-settled. “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on that issue.” Wolferts v. Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. “To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Id. (quotation simplified).

¶11 Here, the district court was not given the opportunity to rule on the argument Todd now asserts on appeal—that before entering the stipulated decree of divorce, the court failed to exercise its duty to independently assess whether the parties’ stipulation was equitable and provided for the best interests of the child. While Todd did assert below that the custody award was inequitable and not in the child’s best interests, these assertions were framed as the undesirable results of Rebecca’s duress, not as an independent ground for relief under rule 60(b)(6). Todd did not assert, as he now does, that the district court erred in accepting the stipulation without ensuring it was fair and in the best interests of the child. In fact, so far as we can tell, Todd made no mention of district court error, focusing his arguments entirely on Rebecca’s actions.

¶12 In his reply memorandum on the motion to set aside, Todd vaguely stated that “the underlying order represents an extreme departure from the legal norm not otherwise supported by findings as to why such should be the case.” But “a party may not claim to have preserved an issue for appeal by merely mentioning an issue without introducing supporting evidence or relevant legal authority.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (quotation simplified). This statement—and similar statements peppered throughout his pleadings below—was not specific enough to alert the district court that it needed to consider the court’s own entry of an allegedly inequitable decree as a basis to set aside. In that same reply, Todd broadly discussed a variety of cases where courts had considered grounds to fall under rule 60(b)(6). His discussion included general assertions about fairness, but he never clearly articulated the impact of fairness on the rule 60(b)(6) inquiry. Todd never focused on a specific “independent ground” as a basis to set aside the decree but instead attempted to analogize different aspects of his case to aspects of other cases where rule 60(b)(6) was invoked. To the extent that fairness was discussed, the concept was used to urge the court to be flexible and liberal in granting relief under rule 60(b) and to show that Todd had a meritorious defense as required to prevail under rule 60(b). The arguments about fairness were never articulated in such a way that the court would have understood Todd was asserting that the district court’s own alleged error in accepting an unfair stipulation was an independent ground for relief.

¶13 Additionally, Todd did not support the argument with “evidence and relevant legal authority.” See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448 (quotation simplified). He did not engage in any discussion of the parameters of the court’s obligation to examine a stipulation for fairness or the best interests of the child before adopting its provisions in a decree of divorce. Instead, he asserted that the provisions were unfair as a result of the duress to which he was subjected. Indeed, the primary argument on which Todd focused the district court’s attention was that the decree of divorce should be set aside because it was the result of “duress and blackmail” and that duress should fall under the catchall provision of rule 60(b)(6) rather than the fraud, misrepresentation, or other misconduct provision of rule 60(b)(3).

¶14 Moreover, it is apparent that the district court did not, in fact, understand Todd to be making the argument he now makes on appeal. Cf. Pratt, 2007 UT 41, ¶ 24, 164 P.3d 366 (concluding that even though an argument was untimely and the court did not have the benefit of the other party’s response, it was “preserved for appeal when the district court was given notice of the issue … and when the court in response to such notice made a specific ruling on the issue” (emphasis added)). Instead, the court construed Todd’s arguments about unfairness as a response to Rebecca’s assertion that he lacked a meritorious defense and discussed concerns about unfairness only in the context of addressing that issue.[1]

¶15 In short, simply expressing concerns about the fairness of the decree of divorce and whether it provided for the child’s best interests did not present the “independent ground” of district court error in such a way that the district court had an opportunity to rule on whether any alleged court error justified setting aside the parties’ decree of divorce. See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. Accordingly, the question of whether that independent ground could support a motion to set aside under rule 60(b)(6) is not preserved for our review.[2]

CONCLUSION

¶16 Because Todd has not preserved the argument he raises on appeal and has not argued that any exception to the preservation rule applies in this case, we decline to review it. We therefore affirm the district court’s determination that the grounds for Todd’s motion to set aside fell under rule 60(b)(3) of the Utah Rules of Civil Procedure and that his motion was therefore untimely.


[1] In addition to asserting that Todd’s motion was untimely, Rebecca argued that he lacked a meritorious defense because he could not prove that the terms of the settlement were unfair.

[2] Todd does not assert that any exception to our preservation rule applies to his argument. See generally State v. Johnson, 2017 UT 76, ¶ 47, 416 P.3d 443 (“When an issue has not been preserved in the trial court, but the parties argue that issue on appeal, the parties must argue an exception to preservation for the issue to be reached on its merits.”).

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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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2020 UT App 93 – Utah Court of Appeals – termination of alimony

2020 UT App 93 THE UTAH COURT OF APPEALS

KELLEY ANNE SOMER, Appellant,
v.
ERIC JOHN SOMER, Appellee.

Opinion
No. 20190293-CA
Filed June 11, 2020

Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie, No. 134900325

Carolyn Perkins, Attorney for Appellant
Brady T. Gibbs, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1        Kelley Anne Somer failed to timely respond to a petition to modify that had been personally served upon her. The district court entered her default and granted the petition, terminating the alimony obligation established in the divorce decree. Kelley then moved to set aside the order on the ground of excusable neglect. A commissioner recommended that the motion to set aside be denied, and Kelley objected. The district court overruled Kelley’s objection and entered an order denying her motion. Kelley appeals, claiming that the district court applied the wrong standard in ruling on the objection and exceeded its discretion in denying the motion to set aside. Although we agree that the district court applied the incorrect legal standard as to Kelley’s objection, we conclude that Kelley invited the error. We further conclude that the district court did not exceed its discretion in refusing to set aside the order modifying the decree. We therefore affirm.[1]

BACKGROUND

¶2        Kelley and Eric married in the summer of 1990. In the beginning of 2013, Kelley filed for divorce, alleging irreconcilable differences. A little more than two years later, after significant litigation, the district court entered a divorce decree. In the decree, Eric was ordered to make alimony payments of $2,416 per month for twelve years. The divorce decree added various standard conditions, including that the alimony obligation would terminate upon “the death of either party, the remarriage of [Kelley,] or the cohabitation of [Kelley].”

¶3        In September 2016, Eric stopped paying alimony and, on May 25, 2018, brought a petition to modify the divorce decree. In his petition, Eric’s sole request was a cessation of his alimony obligation. Eric alleged that Kelley had been cohabiting with another man since early 2016. On that basis, Eric sought termination of his alimony obligation prospectively in full and retroactively to the date on which the cohabiting purportedly commenced.

¶4        On June 3, 2018, Eric effected personal service of his petition on Kelley. The summons expressly stated, “[Y]ou must file your written, signed answer with the clerk of the court” within twenty-one days, and it included a URL link to a blank answer form on the court’s website. It also identified a court website for legal assistance and warned that failure to file an answer in the allotted time could lead to “judgment by default . . . for the relief demanded in the [p]etition.”

¶5        After receiving service, Kelley pursued several courses of action. She first sought to retain one of her former attorneys, but the attorney was no longer taking clients. Kelley then went to Legal Aid Society at the Matheson Courthouse. She also met with an attorney at the West Jordan Family Law Clinic and received an answer guide packet. On the Friday before her answer was due, Kelley called the commissioner’s chambers but claims she did not receive a response. So, she went to the courthouse and left a note requesting assistance. While at the courthouse, Kelley accessed the law library and made copies of excerpts of the Utah Rules of Civil Procedure. Finally, on the day her answer was due, which was Monday, June 25, 2018,[2] Kelley claims she called the commissioner’s chambers again, leaving a voice message. But she did not file her answer on that day.

¶6        On the following Wednesday, June 28, 2018, Eric submitted default documents to the court. The court clerk entered the default, and the district court entered default judgment when it signed findings of fact, conclusions of law, and an order modifying the decree. Later that same day, Kelley filed a motion for an extension to answer, which the court denied. The court noted that the motion was several days late, that Kelley had received personal service of the summons, and that the default certificate had been entered before the request for an extension of time was filed.

¶7        Kelley thereafter retained counsel and, on July 25, 2018, filed a motion to set aside the default judgment for excusable neglect under rule 60(b)(1) of the Utah Rules of Civil Procedure. She included a proposed answer as an exhibit to her motion. In her proposed answer, she denied cohabiting with the other man. The commissioner recommended the motion be denied, concluding that Kelley’s neglect was not excusable. Kelley made a rule 108 objection to the commissioner’s recommended ruling.[3]

¶8        The objection was fully briefed and came before the district court for hearing. The court reviewed the commissioner’s recommendation, ultimately overruled Kelley’s objection, and denied the motion to set aside the order modifying the decree. On the record, the court indicated that it was reviewing the commissioner’s recommendation under an abuse of discretion standard. In an order memorializing its findings and conclusions, the court indicated that it was “unable to find any error on the [c]ommissioner’s part.” Further, the court concluded that Kelley had failed to exercise sufficient diligence to justify excusing her delay. It found that Kelley’s first attempt to do anything proactive in this case was eight days before the answer was due and explained that her actions “were too little, too late.”

¶9        Kelley appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Kelley contends that the district court erred in denying her motion for relief from default judgment under rule 60(b)(1) of the Utah Rules of Civil Procedure. In the context of a motion to set aside a default judgment, the movant must show that “(1) the motion is timely;[4] (2) there is a basis for granting relief one of the subsections of 60(b); and (3) the movant has alleged a meritorious defense.” E.g., Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13, 376 P.3d 322 (cleaned up).

¶11 On appeal, Kelley asserts two main contentions: (I) the district court applied the incorrect legal standards in reviewing the commissioner’s recommended ruling and (II) the district court abused its discretion in denying her rule 60(b) motion because her actions constituted excusable neglect.[5] We review whether the district court applied the correct legal standard for correctness. Rodriguez v. Kroger Co., 2018 UT 25, ¶ 11, 422 P.3d 815 (noting that although a district court’s decision is reviewed under an abuse of discretion standard, “whether the district court applied the appropriate standard . . . presents a legal question that we review for correctness”). “We review a district court’s denial of a rule 60(b) motion for relief from judgment for an abuse of discretion.” Jones v. Layton/Okland, 2009 UT 39, ¶ 10, 214 P.3d 859.

ANALYSIS

I. Rule 108 Legal Standard

¶12      Kelley contends that the district court applied the incorrect legal standard in its rule 108 review of the commissioner’s conclusions. We agree. In Day v. Barnes, 2018 UT App 143, 427 P.3d 1272, we explained that rule 108 of the Utah Rules of Civil Procedure “does not provide for an appeal-like review of a commissioner’s decision, but instead requires ‘independent findings of fact and conclusions of law based on the evidence.’” Id. ¶ 16 (quoting Utah R. Civ. P. 108(f)). We gave several reasons for our conclusion, most notably the plain language of rule 108 and the logic behind the district court’s independent review—that is, the commissioner’s ruling ultimately becomes the district court’s order, and thus “[i]t would make little sense that the district court would be limited in reviewing what is essentially its own order.” Id. ¶ 18.

¶13      The district court, however, engaged in an abuse of discretion review of the commissioner’s recommendation. The court stated that it had “to look at the discretion that the commissioner has and make a determination as to whether or not there was an abuse of that discretion . . . .” We reiterate that not conducting an independent assessment of the facts and legal issues contravenes the plain language of rule 108 and our holding in Day. See id. ¶ 16 (“[T]he rule is explicit that the district court’s review is independent on both the evidence and the law.”).

¶14      However, the invited error doctrine constrains us from reversing on this basis. “Under the doctrine of invited error, an error is invited when counsel encourages the [district] court to make an erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. To invite error, a “party must manifest some sort of affirmative representation to the [district] court that the court is proceeding appropriately.” State v. Carrick, 2020 UT App 18, ¶ 34, 458 P.3d 1167 (cleaned up). “Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court” does not consider the party’s objection to that action on appeal. State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985; see also ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 20, 397 P.3d 772.

¶15      As Eric asserts, Kelley invited the court’s error by stating, “It’s my perspective and my belief at this point that the court’s decision . . . is whether or not the commissioner abused [its] discretion with regard to the excusable neglect component to the motion to set aside.” Were it not for such a statement, we would “vacate the district court’s order and remand with instruction that the district court make independent findings and conclusions without imposing an erroneous” legal standard. See Day, 2018 UT App 143, ¶ 20. But Kelley’s affirmative representation served to encourage the court to proceed along an erroneous path, and therefore prevents vacatur on this basis.

II. Excusable Neglect

¶16      Kelley also contends that the district court abused its discretion in denying her motion based on excusable neglect. We disagree. Under rule 60(b) of the Utah Rules of Civil Procedure, a district court may set aside “a judgment, order, or proceeding” on a timely motion and “just terms” for one of the various enumerated reasons, including “excusable neglect.” Utah R. Civ. 60(b)(1). In this context, district courts not only have discretion, they have “broad discretion.” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 859 (emphasis added); see also Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198 (“The outcome of rule 60(b) motions are rarely vulnerable to attack. We grant broad discretion to . . . rule 60(b) rulings because most are equitable in nature, saturated with facts, and call upon judges to apply fundamental principles of fairness that do not easily lend themselves to appellate review.”). Simply disagreeing with the district court’s conclusion is not enough. We must conclude that the decision was so illogical, arbitrary, or unreasonable that it shocks our sense of justice. Jones, 2009 UT 39, ¶ 27. After all, “[t]he equitable nature of the excusable neglect determination requires that a district court be free to consider all facts it deems relevant to its decision and weigh them accordingly.” Id. ¶ 18.

¶17      When exercising this broad discretion, a district court must determine whether a party has exhibited due diligence. “Due diligence is established where the failure to act was the result of the neglect one would expect from a reasonably prudent person under similar circumstances.” Sewell v. Xpress Lube, 2013 UT 61, ¶ 29, 321 P.3d 1080 (cleaned up). “The ultimate goal of the excusable neglect inquiry” is to determine “whether the moving party has been sufficiently diligent that the consequences of its neglect may be equitably excused.” Jones, 2009 UT 39, ¶ 20. Sufficient diligence supplies a “reasonable justification or excuse for” a failure to respond. Sewell, 2013 UT 61, ¶ 15 (cleaned up).

¶18      Whether a party’s efforts are sufficient will always depend on the attendant circumstances. Jones, 2009 UT 39, ¶ 22 (explaining that a party’s “failure to attend to its legal obligation, may be sufficiently diligent and responsible, in light of the attendant circumstances, to justify excusing it from the full consequences of its neglect”). Sufficient diligence falls on a spectrum between no diligence and perfect diligence. Id. ¶ 23. Indeed, while exercising no diligence will never hit the mark of excusable neglect, exhibiting perfect diligence is not required. Id. ¶ 22 (“Perfect diligence is not required.”); Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 19, 376 P.3d 322 (“Relief may not be granted based on other equitable considerations where a party has exercised no diligence at all.” (cleaned up)). Otherwise, rule 60(b)’s excusable neglect provision would be meaningless because in a perfect world with perfect diligence no neglect would ever occur.

¶19      Given the attendant circumstances of this case, the district court acted within its discretion in determining that Kelley’s actions fell short of sufficient diligence. It is true that Kelley exercised some diligence. Rather than doing nothing during the time she had to file her answer, Kelley made minimal efforts. She first tried to hire her former attorney. When that was unsuccessful, she sought to become competent to file an answer by herself. She visited both Legal Aid Society at the Matheson Courthouse and the West Jordan Family Law Clinic, receiving an informative packet related to filing answers. She also engaged in independent research of the Utah Rules of Civil Procedure at the courthouse library. And she called the commissioner’s chambers several times, leaving voice messages and a note as well. Finally, she filed a motion to extend the deadline to answer only days after the answer was due. These efforts may have supported a decision to grant the motion to set aside the default judgment. But the motion was denied. We cannot say that the district court abused its broad discretion for the following reasons.

¶20      To begin, Kelley received personal service of the petition, so it is indisputable that she had knowledge during the entire period that she had to file an answer or even a motion to extend the deadline for that matter.[6] Moreover, the summons contained cautionary language. It stated that “you must file your written, signed answer with the clerk of the court” within twenty-one days. The summons also identified a court website for legal assistance and warned that failure to file an answer in the allotted time could lead to “judgment by default . . . for the relief demanded in the [p]etition.” Additionally, Kelley claims that the petition surprised her, but this is dubious. The conditions set forth in the divorce decree gave the parties notice that alimony was modifiable. Thus, a petition to modify was far from unforeseeable. And this particular petition was more foreseeable because Kelley, in her proposed answer, admitted to staying at the other man’s house, albeit allegedly with her children who were staying there, which could be seen by Eric as cohabiting— one of the explicit divorce decree conditions for modification.

¶21      Furthermore, Kelley knew very well how to hire an attorney, as she had been represented by four attorneys during the divorce litigation. Thus, she was capable of contacting any number of attorneys from our state’s bar to assist her in filing her answer. More to that point, she could have even hired an attorney for the limited purpose of helping her file an answer while she retained more permanent counsel. And the district court found that Kelley’s first attempt to do anything proactive in this case—attempting to retain one of her former attorneys— was just eight days before the answer was due. Under different circumstances, involving a person less familiar with attorneys, this aspect of the case may not be as significant. But Kelley’s familiarity with hiring an attorney militates against her in this case, especially given the full twenty-two days she had to retain one and her single, delayed attempt to that end.

¶22      Another fact works against Kelley in this case: she had a history of tardiness. Three motions for default judgment had been filed against her during the divorce litigation due to alleged dilatory actions. And two of those motions were related to her failure to appear or appoint counsel, as she proceeded pro se. From this experience with previous motions for default judgment, Kelley knew the consequences of not responding on time. And, as noted, the possibility of a default judgment was explicitly stated on the summons she received. Therefore, she was well-aware of what would occur if she did not exercise sufficient diligence.

¶23      Ultimately, Kelley did not attempt to file anything in the prescribed time. All her efforts were essentially research without taking the required action, which of course was actually filing a timely answer—or something else within the specified time. And the district court concluded that, among Kelley’s efforts, she must have received information on how to file an answer. The court stated that it did not “find it credible that she did not get information on how to file a simple answer in this matter.” Kelley does not challenge this finding. Indeed, she spoke with Legal Aid Society at the courthouse, an attorney at the West Jordan Family Law Clinic, received an answer packet with an explanation of how to answer and defend petitions, and did research of her own into the rules of civil procedure. Therefore, Kelley made a conscious choice not to do what she had been informed of: timely filing an answer.

¶24      In short, Kelley’s meager efforts lend support to the conclusion that her neglect was not excusable, and we defer to the district court’s broad discretion. See Jones, 2009 UT 39, ¶ 17.[7]

CONCLUSION

¶25      We hold that the district court committed error in its rule 108 review of the commissioner’s recommended ruling, but that the error was invited, and therefore not subject to reversal. We also hold that the district court did not exceed its broad discretion in determining that Kelley’s actions were not excusable under rule 60(b)(1) of the Utah Rules of Civil Procedure. Accordingly, we affirm.

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

—————

[1] Because the parties have the same last name, we refer to them by their first names throughout this opinion with no disrespect intended by the apparent informality.

[2] See Utah R. Civ. P. 6(a); id. R. 12(a).

[3] See id. R. 108(a) (establishing that “[a] party may file a written objection to the recommendation” of a court commissioner).

[4] Timeliness is not an issue here. Rule 60(c) provides a party “90 days after entry of the judgment or order” to file a motion under rule 60(b)(1). Id. R. 60(c). The parties correctly agree that the motion to set aside the default judgment was timely because the under judgment was entered on June 28, 2018, and Kelley filed her motion on July 25, 2018—indubitably within the prescribed ninety-day period.

[5] The parties also dispute whether Kelley presented a meritorious defense, but we do not reach this issue because we conclude that the district court did not abuse its discretion in determining that Kelley failed to exercise excusable neglect. See Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13, 376 P.3d 322 (“It is unnecessary, and moreover inappropriate, to even consider the issue of a meritorious defense unless the court is satisfied that a sufficient excuse has been shown.” (cleaned up)). However, we take occasion to clarify that Eric’s arguments misapprehend the law on this issue. He asserts that because Kelley’s proposed answer “failed to present any admissible evidence demonstrating a meritorious defense” and was “unverified and unattested,” Kelley did not present a meritorious defense. But Utah jurisprudence is abundantly clear that proof beyond allegations stating a claim or defense is unnecessary. E.g., Sewell v. Xpress Lube, 2013 UT 61, ¶¶ 33–34, 321 P.3d 1080; Metropolitan Water Dist. of Salt Lake & Sandy v. Sorf, 2013 UT 27, ¶ 24, 304 P.3d 824; Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶¶ 22–25, 270 P.3d 456; Lund v. Brown, 2000 UT 75, ¶¶ 28–29, 11 P.3d 277.

[6] On this point, Kelley claimed in her motion for an extension to answer that she did not receive notice until she sought advice. But the district court found this claim was not credible, stating that “it seems unlikely that [Kelley] would pursue information . . . regarding service, were she unaware that the Petition to Modify had been filed.” Kelley has not challenged this finding of fact on appeal.

[7] Kelley also contends that the district court erred by not considering the four excusable neglect factors set forth in West v. Grand County, 942 P.2d 337, 340–41 (Utah 1997). But West itself made clear that those factors are neither necessary nor dispositive. Id. (explaining that situations of excusable neglect “are so varied and complex that no rule adequately addressing the relevance of all . . . facts can be spelled out” and noting that the four factors “are not dispositive” (cleaned up)). And our supreme court has reaffirmed those points in its subsequent jurisprudence. See, e.g., Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214 P.3d 859 (clarifying that a district court is “free to consider all facts it deems relevant to its decision and weigh them accordingly”). Furthermore, other supreme court opinions have not even mentioned West or its four factors in analyzing the issue of excusable neglect. See generally Sewell, 2013 UT 61; Metropolitan, 2013 UT 27; Judson, 2012 UT 6. Therefore, Kelley’s argument is unavailing.

Kelley also argues that the district court erred in its factual findings that “this matter was pending since 2013” and that she was not likely surprised by Eric’s petition due to her experience with the divorce litigation. She asserts that “the judge got the facts wrong.” As a means of explaining background, the court was commenting on the divorce litigation in relation to Eric’s petition to modify and its finding that Kelley was not surprised, not erroneously conceiving that Eric’s petition was brought in 2013. Thus, Kelley’s arguments in this regard are entirely unpersuasive.

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2020 UT App 14 – UTAH COURT OF APPEALS – QDRO drafting, rule 60(b)

2020 UT App 14 – THE UTAH COURT OF APPEALS
REGGIE ANN PECK, Appellee v. KEVIN SCOTT PECK, Appellant.

Opinion
No. 20180732-CA
Filed January 24, 2020
First District Court, Logan Department
The Honorable Thomas Willmore
No. 094100623
David Pedrazas, Attorney for Appellant
Marlin J. Grant, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE GREGORY K. ORME concurred. JUDGE JILL M.
POHLMAN dissented, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1 Kevin Scott Peck appeals the district court’s denial of several motions aimed at correcting an alleged clerical error in a qualified domestic relations order (QDRO) entered by the court. We affirm the district court’s determination that the QDRO reflected the parties’ intent but reverse the court’s dismissal of Kevin’s[1] rule 60(b) motion on timeliness grounds and remand for further proceedings.

BACKGROUND

¶2 Kevin married Reggie Ann Peck on June 15, 2001, and the parties divorced on July 15, 2003. Their decree of divorce awarded Kevin all interest in his retirement pension.

¶3 After a short separation, the parties began cohabiting and then remarried on October 22, 2004. The parties divorced a second time on November 19, 2010. The parties’ second decree of divorce, which was based on the parties’ stipulation, referenced the prior marriage, stating that the parties “had previously been married to each other on June 15, 2001, then divorced.” With respect to retirement, the second decree provided, “Retirement will be divided according to the formula set forth in the case of Woodward v. Woodward.” It also provided that the division would be accomplished by the entry of a QDRO.

¶4 In early 2016, Reggie submitted a QDRO for approval, which stated, “The Member and the Alternate Payee were married on June 15, 2001. The Member and the Alternate Payee were divorced on November 19, 2010.” The QDRO further stated that “[t]he Alternate Payee is awarded 50% of the Member’s benefits accrued during the marriage.” Kevin did not object to the QDRO, and the court signed it on May 12, 2016.[2]

¶5 On October 24, 2017, seventeen months after the final QDRO was signed, Kevin filed a motion for a nunc pro tunc order to correct the date of the parties’ marriage in the QDRO from June 15, 2001, to October 22, 2004, asserting that the second decree divided only retirement accrued during the second marriage. Reggie objected, asserting that the date used in the QDRO reflected the parties’ intent to “use[] the [first] marriage to equitably divide the retirement” “[b]ecause there was not that much of a gap between the [first] marriage and the second remarriage.”

¶6 The court held a hearing on the matter on January 18, 2018. At the hearing, Reggie submitted a letter sent to her counsel from prior counsel that included a QDRO drafted in 2010 that had been approved as to form by Kevin’s prior attorney. Like the QDRO ultimately filed with the court, this QDRO included a marriage date of June 15, 2001. Reggie argued that the earlier QDRO demonstrated that the parties had “always” intended to “put the first marriage date as the date the QDRO would be divided and through the divorce period.” Her attorney explained that he “didn’t think [the Decree] needed [the date] because [Kevin’s prior attorney] signed off on the QDRO where it said that.” The district court found, based on the QDRO signed by Kevin’s attorney in 2010, “that there is enough evidence to show that the parties intended to use the first marriage date to split the retirement.” It therefore denied Kevin’s motion to enter a nunc pro tunc order amending the QDRO.

¶7 Kevin next filed a motion pursuant to rules 60(a) and 60(b) of the Utah Rules of Civil Procedure, requesting that the court either correct the date as a clerical error or set aside the QDRO using “the residuary clause of rule 60(b)” due to gross attorney negligence. (Quotation simplified.) The court denied this motion as well. First, the court rejected Kevin’s rule 60(a) argument because it found, “based upon the previous findings and ruling by the Court at the January 18, 2018, hearing,” “that there was no clerical mistake.” Second, the court rejected Kevin’s rule 60(b) argument because it determined that Kevin’s arguments on this point were “based on mistake or excusable neglect,” matters that must be raised, according to rule 60, “not more than 90 days after entry of the judgment or order.” Utah R. Civ. P. 60(c). The court found that Kevin was attempting to “circumvent the three month period” by framing his arguments under the rule 60(b)(6) residuary clause when his allegations as to the competence of his prior attorneys actually concerned mistake and excusable neglect. The court therefore found Kevin’s rule 60(b) motion to be untimely and denied it on that basis. Kevin now appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Kevin asserts that the district court erred in denying his

motion for a nunc pro tunc order, his rule 60(a) motion to correct a clerical mistake, and his rule 60(b) motion to set aside the QDRO. Because both the motion for a nunc pro tunc order and the rule 60(a) motion turned on the existence of a clerical error, we address Kevin’s arguments with respect to both motions as a single issue. In doing so, we accept the court’s factual findings unless they are shown to be clearly erroneous, Stonehocker v. Stonehocker, 2008 UT App 11, ¶¶ 9, 44, 176 P.3d 476, but review its ultimate determination regarding the existence of a clerical error for correctness, see State v. Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610; Behrman v. Behrman, 2006 UT App 257, ¶ 8, 139 P.3d 307. With respect to the court’s denial of Kevin’s rule 60(b) motion, the court “is afforded broad discretion . . . , and its determination will not be disturbed absent an abuse of discretion.” Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989).

ANALYSIS

I. Clerical Error

¶9 “A clerical error is one made in recording a judgment that results in the entry of a judgment which does not conform to the actual intention of the court.” State v. Rodrigues, 2009 UT 62, ¶ 14, 218 P.3d 610 (quotation simplified). Rule 60(a) of the Utah Rules of Civil Procedure permits a court to “correct a clerical mistake . . . whenever one is found in a judgment, order, or other part of the record.” Utah R. Civ. P. 60(a). “On the other hand, a judicial error is one made in rendering the judgment and results in a substantively incorrect judgment.” Rodrigues, 2009 UT 62, ¶ 14 (quotation simplified). Judicial errors are not subject to correction under rule 60(a) but must be challenged either in the context of appeal or, in limited cases, through a rule 60(b) motion to set aside. See Fisher v. Bybee, 2004 UT 92, ¶¶ 10–11, 104 P.3d 1198 (explaining the limitations of rule 60(b) in challenging alleged legal errors); Thomas A. Paulsen Co. v. Industrial Comm’n, 770 P.2d 125, 130 (Utah 1989) (explaining that a district court may generally correct only clerical errors, not judicial errors). “The distinction between a judicial error and a clerical error does not depend upon who made it. Rather, it depends on whether it was made in rendering the judgment or in recording the judgment as rendered.” Lindsay v. Atkin, 680 P.2d 401, 402 (Utah 1984) (quotation simplified).

¶10 Kevin maintains that the use of the first marriage date, rather than the second marriage date, in the QDRO is a clerical error because it does not reflect the intention of the second decree. Reggie, on the other hand, asserts that this cannot be considered a clerical error because the court found that the parties intended to use that date in the QDRO.[3]

¶11 “[O]ur clerical error analysis generally focuses on (1) whether the order or judgment that was rendered reflects what was done or intended, (2) whether the error is the result of judicial reasoning and decision making, and (3) whether the error is clear from the record.” Rodrigues, 2009 UT 62, ¶ 14. Here, the court found that the parties intended to use the date of the first marriage in the QDRO based on Kevin’s prior attorney’s approval of the QDRO as to form. Kevin does not challenge this finding on appeal but instead asserts that any such intention is irrelevant because the QDRO must reflect the terms of the second decree, which contains no findings or conclusions indicating the parties’ or the court’s intent to divide the retirement based on the first marriage date. See supra note 3. But the fact that the plain language of the divorce decree suggests that it may have been legal error to use the first marriage date in the QDRO does not mean that the parties and the court did not intend to use that date. And Kevin has not challenged the court’s finding that the parties intended—erroneously or otherwise—to use the first marriage date. The fact that the parties stipulated to and the court approved a QDRO that contained a legal error ultimately demonstrates an error of judicial decision making, not a mistake in memorializing the QDRO. But Kevin did not object to the QDRO when it was proposed and therefore lost the opportunity to challenge this legal error directly. While this is unfortunate, he cannot now remedy his failure to timely object by reframing the error as clerical. Because we agree with the district court that Kevin cannot establish that the marriage date used in the QDRO was a clerical error, we affirm the district court’s refusal to enter a nunc pro tunc order reforming the QDRO.

II. Rule 60(b)

¶12 Kevin next asserts that the district court erred in denying his motion to set aside the QDRO pursuant to the residuary clause of rule 60(b) of the Utah Rules of Civil Procedure on the ground that his prior attorneys were grossly negligent in failing to notify him of hearings and orders, failing to appear at hearings, and failing to object to the QDRO in a timely manner. The district court determined that these arguments could not properly be raised under the residuary clause of rule 60(b) because Kevin’s prior attorneys’ actions “may constitute a mistake or excusable neglect” and therefore would be more properly addressed pursuant to rule 60(b)(1). Because a motion under rule 60(b)(1) must be brought within ninety days, the court dismissed Kevin’s motion as untimely.

¶13 “Rule 60(b)(6) [the residuary clause] is the ‘catch-all’ provision of rule 60(b).” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480. Therefore, “it may not be relied upon if the asserted grounds for relief fall within any other subsection of rule 60(b).” Id. Rule 60(b)(1) permits a court to set aside a judgment for “mistake, inadvertence, surprise, or excusable neglect.” Utah R. Civ. P. 60(b)(1). “In cases where subsection (b)(1) applies, a movant may not attempt to circumvent the three-month filing period by relying on another subsection.” Menzies, 2006 UT 81, ¶ 65.

¶14 Gross attorney negligence that is “too egregious and exceptional to be encompassed by rule 60(b)(1)” may be assessed under the residuary clause. Id. ¶ 74. Here, the district court did not consider whether the actions of Kevin’s attorneys constituted gross negligence. Instead, it determined that Kevin’s argument did not fall within the residuary clause because it believed the argument could be considered under rule 60(b)(1). See id. But our supreme court rejected this approach in Menzies: “The rule is that 60(b)(6) cannot be relied upon if the grounds for relief fall within another subsection, not that 60(b)(6) does not apply if the court has . . . considered another ground.” Id. The district court in this case did not find grounds under rule 60(b)(1). Instead, it found only that “if [Kevin’s] attorney failed to give him notice or object that may constitute a mistake or excusable neglect” and that “the issues raised . . . are possibly mistake or excusable neglect.”[4] (Emphases added.) Without a finding that grounds for relief existed under rule 60(b)(1), the district court should not have refused to consider Kevin’s gross attorney negligence argument under the residuary clause. We therefore must reverse the district court’s ruling on Kevin’s rule 60(b) motion and remand for further proceedings.[5]

¶15 On remand, the court should determine whether Kevin’s arguments establish mistake, excusable neglect, gross attorney negligence, or none of these. If the court does find that Kevin’s prior attorneys committed gross negligence, then the motion may be rejected as untimely only if the court determines that it was not “filed within a reasonable time.” Utah R. Civ. P. 60(c). See generally Crane-Jenkins v. Mikarose, LLC, 2015 UT App 270, ¶ 12, 374 P.3d 1024 (discussing the standard for determining whether a rule 60(b) motion has been brought within a reasonable time).

CONCLUSION

¶16 Because the marriage date listed in the QDRO was a legal error, rather than a clerical error, the district court did not err in declining to enter a nunc pro tunc order or in denying Kevin’s rule 60(a) motion. However, we reverse and remand the court’s ruling on Kevin’s rule 60(b) motion because the court’s findings were insufficient to support its determination that the motion was untimely.

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POHLMAN, Judge (concurring and dissenting):

¶17 I would affirm. While I join the majority’s affirmance of the district court’s refusal to enter a nunc pro tunc order, supra ¶ 11, I would not reach the merits of the district court’s rule 60(b) decision, supra ¶¶ 12–15, or reverse on that basis.

¶18 The majority concludes that the district court erred in its rule 60(b) assessment because it failed to make sufficient findings to support its apparent determination that the motion fell under subsection (b)(1) rather than the catchall subsection, (b)(6), and was therefore untimely. Supra ¶¶ 12–15. The majority faults the court for failing in its rule 60(b) decision to find that grounds under subsection (b)(1) had “actually [been] established.” Supra ¶ 14 & n.4. But on appeal, Kevin has mounted no challenge to the sufficiency of the district court’s rule 60(b) findings, and he makes no argument that its decision should be reversed because it failed to find that rule 60(b)(1) grounds had been established. Thus, in my view, the majority’s conclusion on the rule 60(b) issue seems to stray into advocacy, essentially making for Kevin an argument that he did not make for himself and then reversing the matter on that ground.

¶19 As our supreme court has explained, “our appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves, while allowing an impartial tribunal to determine the merits of those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443 (cleaned up); see also id. ¶ 74 (Lee, J., concurring) (“Ours is an adversary system. Within it judges are sworn to follow the law in an evenhanded, objective manner. We sidestep that system when we take on a role of advocacy.”). In such a system, values of fairness and judicial economy dictate that our appellate courts “will not independently root around in the record to try to figure out whether” the district court “got it right.” Living Rivers v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶ 51, 417 P.3d 57; see also Johnson, 2017 UT 76, ¶ 8 (stating that our adversarial system “preserves judicial economy and fairness between the parties”).

¶20 Instead, in our system, appellants carry the burden to persuade a reviewing court through reasoned, supported argument that the district court committed harmful, reversible error—a burden that necessarily requires the appellant to address the reasoning and basis of the district court’s ruling and to explain why that court got it wrong. See Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51; Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (“Because [the appellants] have not addressed the actual basis for the district court’s ruling, they have failed to persuade us that the district court’s ruling constituted error . . . .”); see also Utah R. App. P. 24(a)(8). If an appellant fails to carry this burden, our appellate courts have repeatedly held that the desire to correct what may amount to legal error must give way to the well-established “institutional constraints” and values underlying our adversarial system. Goldenwest Fed. Credit Union v. Kenworthy, 2017 UT App 191, ¶ 16, 406 P.3d 253 (affirming the district court’s grant of summary judgment where the appellant failed to demonstrate error in the district court’s decision, observing that principles of “preservation and adequate briefing must prevail over legal correctness”); see also Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51 (affirming the decision below where the appellant “utterly” failed to point out any error in that decision or explain why the decision was wrong, instead merely restating the same legal position that was rejected below); Allen v. Friel, 2008 UT 56, ¶¶ 7, 14, 194 P.3d 903 (setting forth an appellant’s burden on appeal, which requires addressing the district court’s reasoning and demonstrating the error in that reasoning and the court’s ultimate ruling, and dismissing the appellant’s appeal where he failed to address the district court’s actual holdings).

¶21 These same principles, in my view, should dictate affirmance of the district court’s rule 60(b) ruling here. Kevin merely restates to us the same reasons why he should be entitled to relief under rule 60(b) that were rejected by the district court’s ruling. See Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51. He makes no attempt to explain why the basis for the district court’s decision is wrong, and he makes no argument that its findings fail to sufficiently support its ultimate conclusion. See id. Indeed, Kevin’s opening brief is virtually identical to the motion to set aside that the district court rejected.

¶22 The majority’s conclusion on the rule 60(b) issue may be correct as a matter of law. But, in my view, Kevin has not met his burden to persuade us to even reach the merits of the issue. In such circumstances, as we have held before, “our institutional constraints [ought to] prevent us from reversing on the basis of a winning argument that [Kevin] did not make.” See Goldenwest Fed. Credit Union, 2017 UT App 191, ¶ 16. On this basis, I would affirm the district court’s rule 60(b) decision.

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

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[1] “As is our practice in cases where both parties share a last name, we refer to the parties by their first name with no disrespect intended by the apparent informality.” Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

[2] 2. Actually, three versions of the QDRO were submitted to the court and signed—one on February 4, 2016, one on March 18, 2016, and one on May 12, 2016. All three versions contained the June 15, 2001 marriage date and purported to divide Kevin’s defined benefit plan. As any differences between the orders are not relevant to the issue presented on appeal, we refer to the most recent version of the order for simplicity.

[3] Based on the plain language of the second divorce decree, which was based on the parties’ stipulation, the use of the first marriage date in the QDRO does seem to be an error. A QDRO must conform to the terms of the decree that it effectuates. Indeed, a QDRO is merely a mechanism by which the retirement provisions of a divorce decree are enforced. See In re Kiley, 2018 UT 40, ¶ 4, 427 P.3d 1165 (defining a QDRO as “the document that would permit [an alternate payee] to access [the plan participant’s] retirement funds”); Bailey v. Bailey, 745 P.2d 830, 832 (Utah 1987) (explaining that a QDRO “furnishes instructions to the trustee of a retirement plan and specifies how distributions should be made”); Potts v. Potts, 2018 UT App 169, ¶ 1 n.2, 436 P.3d 263 (“A [QDRO] instructs the trustee of a retirement plan and specifies how distributions should be made, to whom, and when.” (quotation simplified)); see also Johnson v. Johnson, 2014 UT 21, ¶ 17 n.28, 330 P.3d 704 (rejecting the assertion that a QDRO must be filed for a beneficiary “to enforce her right to payments,” explaining that the party’s entitlement to a share of the benefits is established by the decree itself, not subsequent documents filed to enforce the payment by a plan administrator). And there are no findings or other explanation in the second decree indicating that the parties or the court intended for the retirement to be divided as of the date of the first marriage. The only mention of the previous marriage in the decree is the bare factual statement, in an early paragraph outlining the historical background of the parties’ marriage, that the parties “had previously been married to each other on June 15, 2001, then divorced.” The decree does not assign any relevance to this factual statement, let alone link it specifically to the retirement division. The retirement provision states only that “[r]etirement will be divided according to the formula set forth in the case of Woodward v. Woodward,” 656 P.2d 431 (Utah 1982), and in fact, the decree’s alimony provision explicitly states, “This is a 5 year marriage . . . .” Further, we have previously required courts attempting to divide assets from a previous marriage in a second divorce to make specific findings supporting either a modification of the first divorce or a division of premarital assets based on “the existence of exceptional circumstances.” Kelley v. Kelley, 2000 UT App 236, ¶¶ 22–24, 9 P.3d 171. No such findings were contained in the decree here.

[4] In its conclusion, the court states, “Rule 60(b)(6) cannot be used to circumvent the three month period when Respondent is laying blame upon his attorney, which allegations the Court has found amounts to mistake or excusable neglect.” (Emphasis added.) However, the court’s actual findings are equivocal on this point, as noted above, and the court did not make any findings regarding the efficacy of the attorneys’ actions or inaction, how the prior attorneys’ representation affected Kevin, or whether any mistake or neglect on the part of the prior attorneys was excusable. Thus, we cannot construe this final summation in the district court’s order as a finding that the attorneys’ actions actually established grounds of mistake or excusable neglect.

[5] 5. The dissent disagrees with our decision to address this argument, asserting that Kevin has not adequately challenged the court’s findings on appeal. While Kevin has certainly not developed his rule 60(b) argument as thoroughly as we would like to see, he is clear in asserting that Menzies places gross attorney negligence within the residuary clause of rule 60(b) and that the district court erred in declining to consider his arguments under the residuary clause. As the dissent points out, this is the same argument he made to the district court, but that is not inherently a basis to reject the argument or to consider it inadequate. On appeal, Kevin asks us to correct what he perceives as the district court’s error in rejecting his argument in the first place. While our analysis is ultimately a bit more nuanced, in that we acknowledge that analysis under the residuary clause may be precluded by a finding that the facts actually fall under another provision, Kevin’s assertion that gross attorney negligence falls under the residuary clause is well-taken.

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2018 UT App 210 – Silva v. Silva – sheriff’s sale, attorney fees

2018 UT App 210 – Silva v. Silva
THE UTAH COURT OF APPEALS

DAVID SILVA, Appellee,
v.
BONNIE SILVA, Appellant.

Opinion No. 20160171-CA
Filed November 8, 2018
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 140908706

J. Spencer Ball, Attorney for Appellant
Shawn D. Turner, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        Bonnie Silva appeals the district court’s denial of her motions to set aside a default judgment and a sheriff’s sale following that judgment. She also challenges the district court’s award of attorney fees. We vacate the district court’s rulings and remand for further proceedings.

BACKGROUND

¶2        Bonnie Silva and David Silva divorced in 2010. The marital estate included interests in fifteen parcels of real property—four properties held jointly, one property held by David, and ten properties held by Bonnie.[1] The decree allocated the properties and ordered the parties to execute quitclaim deeds within thirty days, conveying their interests in the properties to one another as specified in the decree. If either party failed to execute a quitclaim deed, the divorce decree authorized the other party to seek a court order to transfer title. One of the properties awarded to David was a residential property located on Dennis Drive in West Valley City, Utah (the Dennis Drive Property).

¶3        In June 2010, pursuant to the divorce decree, Bonnie executed a quitclaim deed as “Grantor Bonnie Moore, now known as Bonnie Silva,” purportedly conveying the Dennis Drive Property to David. But when David attempted to record the deed, he discovered that “Bonnie Moore[,] as Trustee for the Consolidated Trust,” actually held title to the Dennis Drive Property. He further discovered that one week before he had filed for divorce in September 2008, Bonnie had conveyed the Dennis Drive Property and other properties then in her name to herself and her daughters, K.V. Lum and R. Carter, as trustees of a trust known as the Consolidated Trust. After learning these facts, David sent a revised quitclaim deed to Bonnie, but she did not sign and return it as requested. Several months later, Bonnie, as a trustee of the Consolidated Trust, again conveyed the Dennis Drive Property and other properties to Lum, as trustee of the Consolidated Trust.

¶4        In October 2010, David filed a Motion for Contempt with the district court. Because he claimed he could not locate Bonnie, David filed a Motion for Alternative Service, which the court granted. The district court held an evidentiary hearing and entered a default judgment finding Bonnie in contempt for failing to convey the Dennis Drive Property to David. However, the court left open a window during which Bonnie could cure the contempt. If Bonnie did not convey the Dennis Drive Property to David within thirty days, the court would enter a $219,000 judgment against her. Bonnie did not convey the property to David during this time. A few months later, Lum, as a trustee of the Consolidated Trust, conveyed title to the Dennis Drive Property to Carter, as a trustee of the Consolidated Trust. The district court then entered a contempt judgment against Bonnie, reducing slightly the $219,000 by amounts David owed to Bonnie under the divorce decree.

¶5        The following month, David instituted this action against Bonnie and her daughters alleging fraudulent conveyance and seeking to quiet title to the Dennis Drive Property. David filed a motion for alternative service recounting his prior unsuccessful efforts to serve Bonnie. David asserted that the process server had attempted personal service at Bonnie’s last known address four separate times. The district court ordered alternative service by publication, which David accomplished.

¶6        Bonnie did not answer the complaint. The district court clerk consequently entered a default certificate against Bonnie, and the court ordered an evidentiary hearing on damages. Concerned that Bonnie may have received inadequate notice of the hearing, the district court rescheduled the hearing and required additional service on Bonnie. David attempted service by mailing copies of the notice of hearing to what David claimed was Bonnie’s last known address by both regular and certified mail. David also attempted personal service whereby the process server left the notice at Bonnie’s last known residence on three separate occasions. David then completed service by publication again.

¶7        Bonnie did not appear at the hearing on damages. In its Findings of Fact and Conclusions of Law, the district court concluded that “Service of Process of the Complaint and notice of the evidentiary hearing on damages were in accordance with the Rules of the Court, the Statutes of Utah, and the Constitutional requirements of due process.” The district court also determined that Bonnie had fraudulently conveyed the Dennis Drive Property and her other properties to the Consolidated Trust. Accordingly, the district court ruled that the contempt judgment entered in the divorce action attached to the properties, that Bonnie and her daughters were enjoined from transferring or encumbering the properties, and that David “may levy execution on the properties . . . and sell the amount of the property necessary to satisfy the judgment.” Finally, the district court awarded attorney fees and costs to David. The district court thus entered default judgment against Bonnie in the amount of the contempt judgment, now attached to Bonnie’s properties. The court also awarded costs and attorney fees totaling nearly $50,000. The district court clerk subsequently issued a writ of execution on three of Bonnie’s properties, including the Dennis Drive Property.

¶8        Later that month, Bonnie’s counsel entered an appearance in the district court and filed a motion pursuant to rule 60(b)(1) of the Utah Rules of Civil Procedure seeking to set aside the default judgment on the basis of excusable neglect and to quash the writ of execution. The district court held a hearing, which Bonnie and her counsel attended. At that hearing, Bonnie maintained that the default judgment should be set aside on the ground of excusable neglect because she did not receive actual notice of the action and service was insufficient under the circumstances. Bonnie acknowledged that service complied with the law, but she argued that David knew where Bonnie was located and could easily have contacted her to give her actual notice of his claims.

¶9        Bonnie filed an affidavit with her rule 60(b) motion and a second affidavit with her reply motion. In her first affidavit, Bonnie alleged that she had not received notice of the current action against her. She further alleged that she received a call from David notifying her that “something was wrong with the quitclaim deed” but that “David never indicated to [her] in that telephone call that there was any court proceeding.” In her second affidavit, Bonnie alleged that David knew of various means of contacting her, including her two email addresses or through their respective children and the renters of their properties. David did not refute these allegations.

¶10 The district court denied Bonnie’s motion to set aside based upon excusable neglect on the ground that “service [of the notice] and the resulting default were appropriate.” The court reached this conclusion, in part, because the court determined Bonnie provided no evidence—despite her two affidavits— supporting her assertions that David knew where Bonnie was located and that she did not receive actual notice of the proceedings. And although the court recited the law relative to excusable neglect, the court did not address excusable neglect in its analysis. Similarly, the court denied the motion to quash for Bonnie’s failure to provide evidence of irreparable harm.

¶11      Four days later, the Dennis Drive Property and the other two properties subject to the writ of execution were sold at a sheriff’s sale. Bonnie responded with a motion for a temporary restraining order (TRO), a motion to void the execution sale, and a motion to join the sale purchasers as parties to the action. After a hearing, the district court denied the TRO on the ground that Bonnie had failed to meet the required elements for relief. The court denied the motion to join the purchasers on the ground that “[Bonnie] cites rules that apply before a judgment is made and are not applicable for a case as this one where judgment was entered.” The court noted that “even if there was no judgment in this case, there is no basis, claim, or cause of action asserted against the purchasers.” The court denied the motion to void the execution sale on the ground that the court had already ruled at the TRO hearing that the notice of sale was properly served.

¶12      Bonnie appealed the district court’s denial of her motions to set aside the default judgment and the sheriff’s sale, and the district court’s award of attorney fees to David. We issued an opinion in this matter on July 28, 2017. See Silva v. Silva, 2017 UT App 125, 402 P.3d 36, vacated, Jan. 9, 2018. We subsequently granted a petition for rehearing, vacated that opinion, and reheard the matter.

ISSUES AND STANDARDS OF REVIEW

¶13 Bonnie asserts two claims of error on appeal.[2] First, she contends that the district court abused its discretion in denying her motion to set aside the default judgment. We generally review a district court’s denial of a rule 60(b) motion under an abuse of discretion standard. Utah Res. Int’l, Inc. v. Mark Techs. Corp., 2014 UT 60, ¶ 11, 342 P.3d 779.

¶14       Second, Bonnie contends that the district court abused its

discretion in denying her motion to set aside the sheriff’s sale, claiming she lacked notice and pointing to irregularities in the sale. “A district court’s decision to set aside a sheriff’s sale is to be reviewed for an abuse of discretion.” Meguerditchian v. Smith, 2012 UT App 176, ¶ 9, 284 P.3d 658 (quotation simplified).

ANALYSIS

I. Rule 60(b) Motion

¶15 Bonnie first contends that the district court abused its discretion in denying her rule 60(b) motion to set aside the default judgment. “Rule 60(b) of the Utah Rules of Civil Procedure provides a mechanism for a party to obtain relief from a final order or judgment . . . .” Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13, 376 P.3d 322. “[A] movant is entitled to have a default judgment set aside under [rule] 60(b) if (1) the motion is timely; (2) there is a basis for granting relief under one of the subsections of 60(b); and (3) the movant has alleged a meritorious defense.”[3] Menzies v. Galetka, 2006 UT 81, ¶ 64, 150 P.3d 480.

¶16 With respect to the second requirement, Bonnie asserted excusable neglect as a basis for relief. See Utah R. Civ. P. 60(b)(1). The excusable neglect inquiry is a flexible one in which the district court is granted broad discretion “to consider all relevant factors and give each factor the weight that it determines it deserves.” Jones v. Layton/Okland, 2009 UT 39, ¶¶ 17, 25, 214 P.3d 859. In such equitable inquiries, “the question is always whether the particular relief sought is justified under principles of fundamental fairness in light of the particular facts.” Id. ¶ 17. Courts are generally encouraged to be “indulgent toward setting a judgment aside where there is reasonable justification or excuse for the defendant’s failure to answer and when timely application is made.” Miller v. Martineau & Co., 1999 UT App 216, ¶ 25, 983 P.2d 1107 (quotation simplified). Indeed, upon a timely motion to set aside, “it is quite uniformly regarded as an abuse of discretion to refuse to vacate a default judgment where there is reasonable justification or excuse for the defendant’s failure to appear.” Arbogast Family Trust v. River Crossings, LLC, 2008 UT App 277, ¶ 23, 191 P.3d 39 (quotation simplified), aff’d, 2010 UT 40, 238 P.3d 1035.

¶17 Here, the district court did not address whether Bonnie’s failure to respond to the complaint was due to excusable neglect. Instead, the court’s analysis focused only on the propriety of its order authorizing alternative service. In its decision denying Bonnie’s motion to set aside, the court observed that the court had approved the alternative service and that Bonnie’s counsel had “admitted at the hearing that service upon [her] was legally proper.” On this basis, the district court concluded that “service and the resulting default were appropriate.” But the question before the court was not whether service or entry of default judgment was technically appropriate. Indeed, despite proper service and entry of an otherwise appropriate default judgment, parties under our rules are afforded an opportunity to set a judgment or final order aside. The correct inquiry, then, is whether Bonnie’s lack of actual notice constitutes a reasonable justification to set aside the default “under principles of fundamental fairness in light of the particular facts.” Jones, 2009 UT 39, ¶ 17. While the particular circumstances of service of process may shed light on whether Bonnie’s failure to respond was reasonable and excusable, the district court failed to address this issue.

¶18 Bonnie argues that David had “many means at his disposal to contact [her] to give notice that he was suing her, including calling and emailing her.” Her affidavit alleges that he knew “her two active email addresses, her telephone number, . . . her children, and many other means he had after 13 years of marriage” to contact her. If Bonnie’s unrefuted allegations are to be believed, then David, contrary to his representations to the court when he filed his motion for alternative service, had the ability to contact Bonnie through means that would have been more likely to reach her. If this is the case, then there was likely “reasonable justification” for Bonnie’s failure to answer. See Arbogast Family Trust, 2008 UT App 277, ¶ 23.

¶19 The district court did not address whether these circumstances made Bonnie’s failure to respond excusable. Rather, the court merely ended its inquiry upon determining that (1) the alternative service was adequate and (2) Bonnie admitted the technical legality of that service of process. Because this determination did not address Bonnie’s excusable neglect argument, we vacate the district court’s ruling and remand for further proceedings.

II. Sheriff’s Sale

¶20 Bonnie also challenges the district court’s refusal to set aside the sheriff’s sale of three of her properties to satisfy the judgment. A court “may set aside a sheriff’s sale where (1) a debtor’s property is sold at a grossly inadequate price and (2) there were irregularities during the sale that contributed to the inadequacy of price or circumstances of unfairness during the redemption period caused by the conduct of the party benefitted by the sale.” Pyper v. Bond, 2011 UT 45, ¶ 15, 258 P.3d 575.

¶21 Bonnie points to two irregularities in the sale that she believes justify setting it aside. First, she asserts that she and her attorney did not receive proper notice of the sale as outlined by rules 69B(b), 64(a)(10), and 5 of the Utah Rules of Civil Procedure. Second, she points out that the sheriff’s sale disposed of all three properties together rather than as separate parcels. She asserts that this is contrary to rule 69B(d), which directs, “The property shall be sold in such parcels as are likely to bring the highest price. Severable lots of real property shall be sold separately.” Utah R. Civ. P. 69B(d). Bonnie maintains that these irregularities contributed to a grossly inadequate sale price, pointing out that the Dennis Drive Property alone was valued at $219,000 at “the bottom of the real estate depression in Utah,” yet the Dennis Drive Property plus two other single family dwellings were sold together at auction for only $186,000 in 2016.

¶22 In its ruling on Bonnie’s motion to set aside the default judgment, the district court did not fully address her arguments. The ruling states simply that the court had “already addressed at the previous hearings the issue of notice of the sale (not required to be served on counsel and notice of sale not done under Rule 5).” From what we can glean from the record, this ruling seems to be based on the court’s reading of rule 69B(b)(3), which states that “[i]f the property is real property, the officer shall post written notice” of the sale. Id. R. 69B(b)(3). The district court appears to have taken this statement in the rule to mean that only posting of notice, rather than service on the defendant pursuant to rule 5, is required under 69B. But in examining the structure of rule 69B(b), this is not the case.

¶23 The rule first states, “The officer shall set the date, time and place for sale and serve notice thereof on the defendant . . . .” Id. R. 69B(b) (emphasis added). The rule then goes on to state, “The officer shall publish notice of the date, time and place of sale as follows . . . .” Id. Rule 69B(b)(3), on which the district court appears to have relied for its determination that “if it’s real property . . . [t]he manner [of service] is different,” is only a subpart of subsection (b) and describes the manner in which notice is to be published with respect to real property. It does not negate the requirement in the first sentence of subsection (b) regarding service upon the defendant. Rule 64(a)(10) defines “serve” for purposes of rule 69B as “any method of service authorized by Rule 5,” id. R. 64(a)(10), and rule 5 requires service upon a party’s attorney where the party is represented by counsel, id. R. 5(b). Thus, the district court’s determination that service upon Bonnie’s attorney was not required was erroneous.

¶24 Nevertheless, the defect in service does not necessarily mean that the sheriff’s sale should be set aside. See Pyper, 2011 UT 45, ¶ 15 (stating that a sheriff’s sale may be set aside where the price is “grossly inadequate” and there are “irregularities during the sale that contributed to the inadequacy of price or circumstances of unfairness”). Further analysis is needed to make this determination. Because the district court erred in its determination regarding notice and did not fully address Bonnie’s other arguments, we remand for the district court to address those arguments.

III. Attorney Fees on Appeal

¶25 Finally, both parties request an award of attorney fees incurred on appeal. Bonnie contends that “[e]quity requires that [she] be granted her attorney’s fees for having to make this appeal.” David counters that even if Bonnie is “able to prevail on appeal, [she] would not be entitled to [her] fees,” because she was “not awarded fees below.” David also requests attorney fees on appeal because he was awarded fees in the default judgment.

¶26 “When a party is entitled to attorney fees below and prevails on appeal, that party is also entitled to fees reasonably incurred on appeal.” Jordan Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28, ¶ 71, 408 P.3d 296 (quotation simplified). “In Utah, attorney fees are awardable only if authorized by statute or by contract.” Jones v. Riche, 2009 UT App 196, ¶ 1, 216 P.3d 357 (quotation simplified). “However, in the absence of a statutory or contractual authorization, a court has inherent equitable power to award reasonable attorney fees when it deems it appropriate in the interest of justice and equity.” Stewart v. Utah Public Service Comm’n, 885 P.2d 759, 782 (Utah 1994). “Courts have exercised that inherent power in several categories of cases,” such as “when a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. (quotation simplified).

¶27 The parties present no contract or statute authorizing attorney fees under the circumstances. Further, neither party has made the required showing or otherwise persuaded us that equity requires an award of attorney fees. Accordingly, we decline to exercise our equitable power and deny each party’s request for attorney fees incurred on appeal.

CONCLUSION

¶28 We conclude that the district court did not address Bonnie’s arguments for setting aside the default judgment and the sheriff’s sale. Accordingly, we vacate the district court’s rulings on these motions and remand for the district court to fully address Bonnie’s arguments. We deny each party’s request for attorney fees incurred on appeal.

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

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[1] Because Bonnie and David share a last name, we refer to them by their first names throughout this opinion. We intend no disrespect by this apparent informality.

[2] Bonnie also asserts that the attorney fees award associated with the default judgment was not supported by findings regarding the reasonableness of the award. Because we vacate the district court’s decision based on Bonnie’s first argument, we do not address her attorney fees argument in detail.

[3] Because we conclude that the district court failed to properly analyze Bonnie’s excusable neglect argument—the basis she alleged for relief—we do not consider the other requirements.

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