Harris v. Harris

----ooOoo----

Craig Jack Harris,
Petitioner and Appellant,

v.

Bonnie Harris,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010341-CA

F I L E D
November 29, 2002 2002 UT App 401 -----

Fourth District, Provo Department
The Honorable Ray M. Harding Jr.

Attorneys:
Loren D. Martin, Salt Lake City, for Appellant
Charles A. Schultz, Heber, for Appellee -----

Before Judges Bench, Davis, and Thorne.

BENCH, Judge:

Husband argues that the trial court erred by granting Wife's motion to strike. Husband's appellate brief consists primarily of cataloging perceived deficiencies in Wife's memorandum in support of her motion to strike and cites these deficiencies as the sole reason for reversal of the trial court's ruling. Husband further mischaracterizes Wife's motion to strike as a motion for judgment on the pleadings and the trial court's ruling as a grant of summary judgment. Husband filed a motion with the trial court, not a pleading. See Utah R. Civ. P. 7(a)-(b). Husband captioned his motion as an order to show cause requiring Wife to comply with the court's previous orders. However, the trial court ruled, and we agree, that Husband's motion was actually an attempt to have the trial court "revalue the assets or reassess distribution" of the property. The motion was therefore properly denied.

Husband's argument on appeal, that he is entitled to a judgment on the pleadings, is disingenuous. Husband argues that he met the requirements for a motion for summary judgment pursuant to rule 4-501(2) of the Rules of Judicial Administration. However, a motion for summary judgment was not appropriate because there was no outstanding "claim, counterclaim or cross-claim." Utah R. Civ. P. 56(a). The trial court had issued its Amended Supplementary Findings of Fact and Conclusions of Law on April 4, 2000, which disposed of all remaining issues in the divorce action. Husband captioned his motion as an "Order to Show Cause and Other Related Matters," not a motion for summary judgment. In his appellate brief, Husband now claims that Wife did not strictly comply with rule 4-501(1)(B) in opposing his motion because she did not controvert his statement of facts and, therefore, that the trial court should have granted him summary judgment. Husband misstates and mischaracterizes the law in making this argument. He is not entitled to a judgment on the pleadings when the motion he submitted to the trial court was for an order to show cause, not summary judgment. Further, although Wife's response to Husband's motion, is captioned as a motion to strike, the contents are clearly in response to the allegations made in Husband's motion, and the trial court correctly treated it as a response. See Debry v. Fidelity Nat'l Title Ins. Co., 828 P.2d 520, 522 (Utah Ct. App. 1992) ("In determining whether the court properly characterized [a] document, we look to the document's substance rather than its caption.").

Husband's second argument is that the trial court erred in refusing to resolve the dispute over the property of third parties, which Husband alleges was taken improperly by Wife. Husband cites to D'Aston v. D'Aston, 844 P.2d 345 (Utah Ct. App. 1992) in support of his argument. That case, however, is easily distinguished and does not apply here. In D'Aston, the property at issue was part of the marital estate, even though it was on consignment to the husband from third parties, and possession had been awarded to the husband. See id. at 348. The trial court found that the property had been taken by the son, who was a named party in the action, and ordered that the property be returned to the husband. See id. at 349. Thus, in D'Aston the husband was asserting his ownership rights against the son, not the third parties' ownership rights. In this case, Husband claims no ownership interest in his sons' property, which he alleges Wife improperly removed from the storage unit. Further, neither of his sons is a named party in this action. Therefore, we conclude that the trial court correctly determined that it did not have jurisdiction to consider the claims of third parties.

Wife argues that Husband's appeal is frivolous and was submitted in violation of rule 33 of the Utah Rules of Appellate Procedure. We agree. "A frivolous appeal is one without reasonable legal or factual basis . . . ." Backstrom Family Ltd. P'ship v. Hall, 751 P.2d 1157, 1160 (Utah Ct. App. 1988). We impose sanctions when "'an appeal is obviously without any merit and has been taken with no reasonable likelihood of prevailing, and results in delayed implementation of the judgment of the lower court; increased costs of litigation; and dissipation of the time and resources of the [court].'" Porco v. Porco, 752 P.2d 365, 369 (Utah Ct. App. 1988) (citation omitted). Husband's appeal has no legal or factual basis. The trial court called Husband's motion "spurious" and said that "[i]t is time to bring finality" in this action. On appeal, Husband has obfuscated and mischaracterized the issues in an attempt to mislead this court and provide legitimacy to his appeal. Therefore, we conclude that sanctions pursuant to rule 33 are appropriate.

We affirm the ruling of the trial court and award Wife double costs and reasonable attorney fees, as she requested. We remand to the trial court for the purpose of determining the amount of costs and attorney fees.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge