State of Utah v. Klimova

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State of Utah, Office of Recovery Services
ex rel. Liudmilla Klimova,
Plaintiff and Appellee,

v.

Yevgeniya Klimova,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991095-CA

F I L E D
June 2, 2000
  2000 UT App 165 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Yevgeniya Klimova, Murray, Appellant Pro Se
Jan Graham and Lynn Nicholas, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Davis.

PER CURIAM:

Yevgeniya Klimova appeals from a default judgment awarded to the State of Utah, Office of Recovery Services, in the amount of public assistance paid for the benefit of her child.

After Klimova answered the complaint, the court set a Pre-Trial Settlement Conference. A notice prepared by the court appears in the record; however, the certificate of service is not signed. Klimova did not appear, and the commissioner entered her default. On appeal, Klimova reiterates her claim that she should not be required to repay the assistance and also claims that she did not receive notice of the Pre-Trial Settlement Conference.

The State contends this appeal should be dismissed as not taken from a final judgment, relying upon A.J. MacKay Co. v. Okland Construction Co., 817 P.2d 323 (Utah 1991). A.J. MacKay refers to the situation where substantive claims are pending in the trial court and the judgment is, accordingly, not final. In this case, the appeal was filed after announcement of the decision, but before entry of a signed judgment and will be considered under Utah Rule of Appellate Procedure 4(c).

Contrary to the State's assertions, there is no evidence in the record that the Notice of Pre-Trial Settlement Conference was served on Klimova. "It is well established that '[t]imely and adequate notice and an opportunity to be heard in a meaningful way are the very heart of procedural fairness.'" W. & G. Co. v. Redevelopment Agency, 802 P.2d 755, 761 (Utah Ct. App. 1990) (quoting Nelson v. Jacobsen, 669 P.2d 1207, 1211 (Utah 1983)). The opportunity to object to the proposed judgment does not adequately address the issues of notice and opportunity to appear before judgment. See Plumb v. State, 809 P.2d 734, 743 (Utah 1990) ("[A]ll parties are entitled to notice that a particular issue is being considered by a court and to an opportunity to present evidence and argument on that issue before decision.").

Nevertheless, the State correctly notes that Klimova should have addressed the issue of lack of notice through a motion to set aside the judgment under Rule 60 of the Utah Rules of Civil Procedure. Such a motion is properly presented to the trial court in the first instance, and an appeal may be taken from a denial of a Rule 60(b) motion. "When a judgment, including a default judgment, has been entered by a court of general jurisdiction, the law presumes that jurisdiction exists, and the burden is on the party attacking jurisdiction to prove its absence." State Dep't of Soc. Servs. v. Vijil, 784 P.2d 1130, 1133 (Utah 1989); see also Garcia v. Garcia, 712 P.2d 288, 290 (Utah 1986) (per curiam) ("[W]here the judgment is void because of a fatally defective service of process, the time limitations of Rule 60(b) have no application.").

Based upon our conclusion that Klimova should have filed a motion to set aside the default judgment, we affirm. Our decision is without prejudice to the filing of a timely Rule 60(b) motion.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge