Stuart v. Stuart

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Kristen M. Stuart,
Petitioner and Appellant,

v.

David W. Stuart,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990731-CA

F I L E D
March 8, 2001 2001 UT App 62 -----

Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys:
Michael J. Boyle, Ogden, for Appellant
Emilie A. Bean, Layton, for Appellee

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

"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." Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989). We see no such abuse in this case given that the statutorily mandated provision is contained in a self-standing section reflecting a narrow, unmistakable legislative policy; appellee was not represented when the decree was entered; and appellant's counsel, who was asked to prepare the court's findings and conclusions, essentially invited the error the trial court needed to rectify by not including the requisite provision in the findings and conclusions or otherwise calling the matter to the trial court's attention.

While the trial court may well have had the power to correct its own oversight, sua sponte, in any event, we see no error under the circumstances in its treating the petition to modify as a motion under Utah R. Civ. P. 60(b). See Kunzler v. Odell, 855 P.2d 270, 273 (Utah Ct. App. 1993) ("The title of a motion is not dispositive as to whether a court can grant relief under the motion."). Nor do we see prejudicial error in the court's refusal to grant a continuance merely so appellant's counsel could conduct legal research concerning the propriety of converting the petition to modify to a Rule 60(b) motion. See generally State v. Begishe, 937 P.2d 527, 530 (Utah Ct. App. 1997).

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
James Z. Davis, Judge