Heely v. Heely

Heely v. Heely, Case No. 981105-CA, Filed October 1, 1998. MEMORANDUM DECISION (Not For Official Publication)   IN THE UTAH COURT OF APPEALS

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Darrenn Jay Heely, Plaintiff and Appellee, 

v. 

Heather Jean Heely, Defendant and Appellant.

Case No. 981105-CA

F I L E D (October 1, 1998)   -----  

Eighth District, Vernal Department

The Honorable John R. Anderson

Attorneys: Alan R. Stewart, Salt Lake City, for Appellant

Dennis L. Judd and Rachelle L. Palmer, Vernal, for Appellee -----  

Before Judges Davis, Wilkins, and Orme.

PER CURIAM:

Appellant Heather Jean Heely appeals from the denial of a motion to set aside a default divorce decree. This case is before the court on a sua sponte motion for summary disposition.

The trial court struck Heather's answer pursuant to Utah R. Civ. P. 37 as a result of her failure to comply with an order compelling discovery. The court entered the Decree of Divorce by default on July 15, 1997. No appeal was initiated; however, Heather filed a pro se motion to set aside the judgment on August 15, 1997. That motion and a second pro se motion were each stricken by the trial court. On October 28, 1997, Heather, through her present counsel, filed a third motion to set aside the judgment, contending the divorce decree should be set aside under Utah R. Civ. P. 60(b)(1) and (7) based upon "mistake, inadvertence and surprise, excusable neglect, attorney misconduct." The substance of the motion was that she had mistakenly relied upon former counsel, was not aware of the proceedings to enforce discovery, was without fault in the events leading up to the default, and could not afford or obtain substitute counsel.

The trial court denied the motion in an order prepared by counsel for appellee Darrenn Jay Heely and signed by the trial court and also in a ruling prepared by the court which was entered on the same day. The order included a finding that the motion "was filed more than three (3) months after the entry of the Order and the Decree of Divorce." However, the ruling prepared by the trial court declined to resolve the motion on grounds that it was untimely and "[ruled] substantively that because of the extreme non-compliance with discovery rules," the motion to set aside was denied.

In order to be relieved from the default judgment, Heather "must not only show that the judgment was entered against [her] through excusable neglect (or any other reason specified in rule 60(b)), but . . . must show [her] motion to set aside the judgment was timely, and that [she] has a meritorious defense to the action." Erickson v. Schenkers Intern. Forwarders, 882 P.2d 1147, 1148 (Utah 1994) (quoting State ex rel. Dept. of Social Services v. Musselman, 667 P.2d 1053, 1055-56 (Utah 1983)). If a rule 60(b) motion is not timely filed, the trial court lacks jurisdiction to consider the merits of the motion. Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah Ct. App. 1991).

Heather's claims of attorney neglect are substantially similar to the claims considered in Lincoln Benefit Life Insurance Co. v. D.T. Southern Properties, 838 P.2d 672 (Utah Ct. App. 1992). This court ruled the claim that a party mistakenly relied upon an attorney's assurances that an answer had been filed fell within rule 60(b)(1), which allows for relief when the judgment has been entered because of "mistake, inadvertence, surprise, or excusable neglect." Id. at 675. A motion under rule 60(b)(1) must be made within three months after the date of the judgment it seeks to have set aside. See Utah R. Civ. P. 60(b). Heather conceded her motion was not filed within three months, but argued the trial court should find the motion to be timely under Rule 60(b)(7). It is well settled that rule 60(b)(7) may not be used to circumvent time limitations when the grounds asserted are encompassed within rule 60(b)(1). See Lincoln Benefit, 838 P.2d at 674.

Although the trial court declined to rely solely upon timeliness in denying the motion, the court lacked jurisdiction to consider the motion's merits because it was not timely filed. An appellate court may affirm the trial court's decision "on any proper ground(s), despite the trial court's having assigned another reason for its ruling." Buehner Block Co. v. VWC Assocs., 752 P.2d 892, 895 (Utah 1988). Accordingly, we affirm the denial of the rule 60(b) motion.

The default judgment resulted in an award of permanent custody to Darrenn. Accordingly, we consider whether the trial court's proceedings were in conformity with our decision in Wright v. Wright, 941 P.2d 646 (Utah Ct. App. 1997). Although affirming a default judgment entered as a discovery sanction, the court held "that before a trial court may enter a judgment by default that transfers custody of a child, the trial court must take evidence and then make findings that a substantial change of circumstances has occurred and that transferring custody of the child is in the child's best interests." Id. at 652.

In the present case, child custody was not transferred; however, the temporary custody award to Darrenn became a permanent award as a result of the default judgment. The important public policy "to have courts ensure that a child's best interest will be met" by a custody determination is implicated in this case. Id. at 651. This court stated in Wright that the evidentiary hearing could be of the type contemplated by Utah R. Civ. P. 55(b)(2), which allows a trial court to take needed evidence when entering a default judgment if the plaintiff's claim is not for a sum certain. Id. At 652 n.5. In this case, the trial court held an evidentiary hearing resulting in a finding that the child was presently residing with Darrenn and had resided with him since the separation of the parties in approximately March of 1995 and later pursuant to a temporary custody award entered in March of 1997, following an extensive evidentiary hearing. The trial court found it was "in the best interest of the minor child" to remain in the custody of her father. It was not necessary to find a change of circumstances because no transfer of custody resulted from the default judgment. Under the circumstances, the trial court's proceedings and findings satisfied the requirements of Wright.

Based on the foregoing, we affirm the denial of the motion to set aside the default judgment.
 
 

______________________________

James Z. Davis,

Presiding Judge
 
 

______________________________

Michael J. Wilkins,

Associate Presiding Judge
 
 

______________________________

Gregory K. Orme, Judge