Stratton v. Stratton

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Vicki Stratton,
Petitioner and Appellant,

v.

David E. Stratton,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981822-CA

F I L E D
February 3, 2000
  2000 UT App 013 -----

Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
Bart J. Johnson and Glen M. Richman, Salt Lake City, for Appellant
Frank J. Falk, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Orme.

ORME, Judge:

Utah Rule of Civil Procedure 60(b) "provides that 'the court may in the furtherance of justice relieve a party or his legal representative from a final judgment' if any of seven specific circumstances are shown." Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989) (citation omitted). "The trial court is afforded broad discretion in ruling on a motion for relief from judgment under Utah R. Civ. P. 60(b), and its determination will not be disturbed absent an abuse of discretion." Id. See Ostler v. Buhler, 957 P.2d 205, 206 (Utah 1998).

We agree with the trial court's assessment, when first presented with Ms. Stratton's Rule 60(b) motion, i.e., that of the multitude of grounds set forth in the moving papers, the only one that would even potentially call the validity of a stipulation proposed by her into question was that she was unaware of certain marital assets when she entered into the stipulation. The trial court also correctly observed that Ms. Stratton's allegations with respect to the undisclosed marital assets were too vague and speculative to set aside the stipulation and decree. She sought to correct this deficiency when she renewed her motion and submitted the affidavit of Sherry Epperson.

In essence, Ms. Stratton's only viable claim is one under Rule 60(b)(2). The Epperson affidavit was, in fact, adequate to identify the marital property that was allegedly newly discovered. But Ms. Stratton wholly failed to meet her other obligation under Rule 60(b)(2), namely to demonstrate that "'by due diligence the evidence could not have been discovered and produced' before judgment was rendered." Hall v. Fitzgerald, 671 P.2d 224, 229 (Utah 1983)(quoting Doty v. Town of Cedar Hills, 656 P.2d 993, 995 (Utah 1982)).

None of the several affidavits she submitted touched upon her diligence in this regard. In her brief and at oral argument, Ms. Stratton made much of the fact that she had engaged in discovery calculated to disclose the property interests later identified in the Epperson affidavit and suggested that Mr. Stratton was unresponsive or otherwise not forthcoming. However, our record is devoid of any of the discovery requests or answers. We only have the certificates of service regarding such discovery. It would be rank speculation to assume Ms. Stratton asked appropriate questions in discovery and Mr. Stratton responded to those requests elusively or dishonestly.

Appellant has the burden . . . to see that the record contains the materials necessary to support [her] appeal. We cannot speculate on the existence of facts that do not appear in the record. When crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.

State v. Mitchell, 709 P.2d 307, 309 (Utah 1985). Moreover, Rule 4-502(3) of the Utah Rules of Judicial Administration squarely put the burden on Ms. Stratton to file with the trial court such portions of the discovery as were necessary to demonstrate the adequacy of her discovery requests and/or the inadequacy of Mr. Stratton's answers. Because she failed to meet her burden in this regard, we must affirm the trial court's ruling.

Affirmed.
 
 
 

______________________________
Gregory K. Orme, Judge

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WE CONCUR:
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Norman H. Jackson, Judge