Snarr v. Snarr

Terry Dee Snarr,
Petitioner and Appellant,

v.

Kenneth Guy Snarr,
Respondent and Appellee.
 

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990285-CA

F I L E D
May 25, 2000 2000 UT App 156 ----

Third District, Salt Lake Department
The Honorable Anne Stirba

Attorneys:
L.G. Cutler, Salt Lake City, for Appellant
Stephen W. Cook, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Davis.

DAVIS, Judge:

Whether a dismissal was properly granted raises a question of law we review for correctness. See Baker v. Angus, 910 P.2d 427, 430 (Utah Ct. App. 1996). Further, "[a] motion to dismiss is appropriate only where it clearly appears that the plaintiffs would not be entitled to relief under the facts alleged or under any set of facts they could prove to support their claim." Id.

The trial court granted respondent's motion to dismiss, concluding that the one-year time restriction of Utah Code Ann.

§ 30-1-4.5(2) (1998) barred the establishment of her common law marriage to respondent. The trial court correctly relied upon this court's decision in Bunch v. Englehorn, 906 P.2d 918, 920-21 (Utah Ct. App. 1995), in which we held that section 30-1-4.5(2)'s time restriction requires the entry of a court or administrative order--rather than the mere filing of an action--establishing the common law marriage within one year of the relationship's termination. Subsequent to the trial court's decision, however, the Utah Supreme Court decided In re Marriage of Gonzalez, 2000 UT 28, 387 Utah Adv. Rep. 89 (plurality opinion). In Gonzalez, a majority of the court held that section 30-1-4.5's time restriction "requires only the filing of a petition for adjudication of marriage within one year after the termination of the relationship." Gonzalez, 2000 UT 28 at ¶30 (plurality opinion); see id. at ¶48 (Zimmerman, J., concurring).

Petitioner alleged that the relationship continued, with her and respondent cohabiting and holding each other out as husband and wife, until they "separated on approximately July 7, 1996," a fact not disputed by respondent. Assuming such relationship was a common law marriage, see Utah Code Ann. § 30-1-4.5(1) (1998), because petitioner filed this action on October 7, 1996, well within one year of the relationship's termination, under Gonzalez it was timely and should not have been dismissed.

We are mindful that in dicta the Gonzalez court purported to salvage Bunch, instead distinguishing it because, unlike in the instant case and in Bunch, no divorce was sought in Gonzalez. SeeGonzalez, 2000 UT 28 at ¶29 n.7. This distinction, however, is lost on us. We can find no support for the proposition that, in enacting section 30-1-4.5, the Legislature intended to create different rules and results for cases in which an establishment and a divorce is sought, and cases in which an establishment alone is sought. Consequently, we conclude that Gonzalez overruled Bunch and applies here notwithstanding that petitioner sought to establish the marriage and obtain a divorce.

In conjunction with the dismissal, the court denied petitioner's request for attorney fees. She again requests attorney fees on appeal pursuant to Utah Code Ann. § 30-3-3 (1998). We decline to award such fees since the governing case law changed after this appeal was brought at which time a significant portion of the fees on appeal were incurred. See id. § 30-3-3(2). Further, inasmuch as the trial court made no findings as to petitioner's need, respondent's ability to pay, or the reasonableness of requested fees, we conclude fees should not be awarded on that basis for this appeal. See id. § 30-3-3(1); Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998). Nonetheless, the trial court may revisit the question of fees incurred in the trial court in the context of further proceedings.

Likewise, we reject respondent's request that this court (1) reverse the trial court's denial of attorney fees below and (2) award attorney fees on appeal under Rule 33 of the Utah Rules of Appellate Procedure. First, because respondent has "not filed a cross appeal on the denial of attorney fees below, [he] has not properly presented the issue here." Childs v. Callahan, 1999 UT App 359,¶16 n.1, 993 P.2d 244. Second, because of our holding on appeal, it cannot be said that the appeal is frivolous justifying an award under Rule 33. See Utah R. App. P. 33(b) ("[A] frivolous appeal . . . is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.").

Reversed and remanded.(1)
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

1. Because we reverse on these grounds, we have no occasion to address petitioner's additional bases for reversal.