Kanth v. Kanth

----ooOoo----

Cory L. Kanth,
Petitioner and Appellee,

v.

Rajani Kannepalli Kanth,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010718-CA

F I L E D
December 12, 2002 2002 UT App 415 -----

Third District, Salt Lake Department
The Honorable Bruce Lubeck

Attorneys:
Rajani Kannepalli Kanth, Salt Lake City, Appellant Pro Se
Frederick N. Green, Sandy, for Appellee -----

Before Judges Jackson, Billings, and Davis.

DAVIS, Judge:

Appellant Rajani K. Kanth (Husband) raises numerous arguments in his appeal from a decree of divorce entered August 1, 2001.(1) First, Husband contends that the trial court failed to defer to federal Hague Convention proceedings and failed to stay state court proceedings. According to the Hague Convention, a court "shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under [the] Convention." Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 16, 19 I.L.M. 1501, recognized and supplemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601 to 11610 (2002).

In this instance, Appellee Cory Kanth (Wife) filed a divorce complaint in the Third District Court of the State of Utah on June 30, 1999. Husband notified the court of a pending petition under the Hague Convention and requested a stay. The case was stayed while the Hague petition was adjudicated. On December 14, 1999, the United States District Court for the District of Utah denied Husband's Hague petition. Husband appealed the decision to the Tenth Circuit Court of Appeals and again requested the Third District Court grant a stay. The Third District Court denied Husband's request and granted temporary relief to Wife as prayed for in her initial complaint. Husband sought an order from the Tenth Circuit Court of Appeals to enjoin the divorce proceedings, but was denied injunctive relief pending his appeal. On November 2, 2000, the Tenth Circuit Court of Appeals upheld the decision of the United States District Court. Husband's petition for certiorari with the United States Supreme Court was denied on June 25, 2001, and a petition for rehearing was denied on August 27, 2001.

Husband's claim that the trial court should have stayed the state divorce proceedings while his Hague petition was being appealed fails. First, Husband did not apply for a stay from any federal court decision. "In order to stay enforcement of a judgment pending appeal, the [appealing party] must, in most cases, apply in the trial court for a stay pending appeal." Cheves v. Williams, 1999 UT 86,¶46, 993 P.2d 191; see also Garrick v. Weaver, 888 F.2d 687, 695 (10th Cir. 1989) (stating "generally a party obtaining a judgment can execute on the judgment following [a] ten-day automatic stay during an appeal in the absence of a stay"). Although Husband applied for injunctive relief--which was subsequently denied--with the Tenth Circuit Court of Appeals, he did not apply for a stay from either the United States District Court or the Tenth Circuit Court of Appeals that would have suspended enforcement of the judgment. Thus, Husband's Hague proceedings had no bearing on either the temporary grant of relief or the divorce decree because a stay of enforcement of the denied Hague petition never occurred.

Second, no deference by the state court was necessary because the Hague Convention requires only that the merits of a custody decision be stayed. See Tucker v. Tucker, 910 P.2d 1209, 1215-16 (Utah 1996) (noting that a temporary order is only temporary and not to be treated as a permanent, fully informed custody determination). The Third District Court granted temporary custody to Wife on May 22, 2000. Judgment on the merits of the case was not entered until August 2001, when the formal divorce decree was issued. By that time, the United States Supreme Court had denied certiorari, and a petition for rehearing on Husband's Hague petition was subsequently denied, making the issue of a stay under the Hague Convention thereafter moot. See Ellis v. Swensen, 2000 UT 101,¶25, 16 P.3d 1233 ("'A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants.'" (Citation omitted.)).

Husband next contends that the trial court should have deferred to the Australian courts for divorce proceedings under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UUCCJEA).(2) At the time the complaint for divorce was filed by Wife in the Third District Court, Utah law required a court to not exercise jurisdiction if a child custody proceeding was "pending in a court of another state." Utah Code Ann. § 78-45c-6 (1996) (establishing Uniform Child Custody Jurisdiction Act (UCCJA)). The term "state" was defined as "any state, territory or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia." Utah Code Ann. § 78-45c-2(10) (1996). In addition, any international application appeared to be limited to the "general policies" of the act and the "recognition and enforcement of custody decrees." Utah Code Ann. § 78-45c-23 (1996). In July 2000, the UUCCJEA replaced the UCCJA and, although the definition of state remained identical, the UUCCJEA included a provision that a foreign country was to be treated as a state for purposes of jurisdiction. Utah Code Ann. §§ 78-45c-101 to -318 (Supp. 2000).

Husband filed a divorce petition in an Australian court on June 3, 1999, and Wife commenced divorce proceedings in the Third District Court on June 30, 1999. Because the UUCCJEA was not effective at the time divorce proceedings were commenced, the trial court was not required to defer to the Australian court for a child custody determination.(3)

Next, Husband alleges that the trial court failed to follow the visitation rights provisions of the Utah Code by not allowing "appropriate and meaningful visitation" and failing to assign a mediator. See Utah Code Ann. §§ 30-3-32 to -38 (Supp. 2002). Similarly, Husband claims that the trial court abused its discretion in limiting or placing restrictions upon Husband's visitation rights. These arguments fail. The trial court's determination of visitation will not be disturbed absent an abuse of discretion. See Watson v. Watson, 837 P.2d 1, 4 (Utah Ct. App. 1992), overruled in part by Lyon v. Burton, 2000 UT 19, 5 P.3d 616. Specifically, "[t]he trial court is . . . afforded broad discretion in restricting visitation." In re W.S., 939 P.2d 196, 199-200 (Utah Ct. App. 1997).
 
 

Here, in the divorce decree, supported by findings of fact and conclusions of law, the trial court established that visitation would be "reasonable," set forth allowable telephone contact, and required Husband to provide sufficient notice for in-person visits. Husband does not clarify which provision of the Utah Code has been violated by the trial court nor does he specify the nature and extent of any visitation rights violation, i.e., specific dates and times he was denied visitation under an established visitation schedule. Because the visitation rights were supported by sufficient findings and based on the children's best interests, see Peterson v. Peterson, 818 P.2d 1305, 1309 (Utah Ct. App. 1991), the trial court did not abuse its discretion in determining Husband's visitation rights and did not err in providing restrictions or limitations on his visitation.

Further, according to the record, this case was referred to the Third District Co-Parenting Mediation Program on December 25, 2001, but was screened out of mediation on December 31, 2001. See Utah Code Ann. § 30-3-38(3)(a). Thus, Husband's challenge that the trial court failed to assign a mediator is now moot. See Ellis, 2000 UT 101 at ¶25.

Next, Husband claims that the trial court violated his due process rights by granting temporary sole custody to Wife without an evidentiary hearing. On January 20, 2000, Commissioner Thomas N. Arnett held a hearing on an order to show cause for temporary orders. Husband's counsel entered a special appearance and requested a stay. The stay was denied and temporary relief was granted to Wife. On December 6, 2000, Husband requested an evidentiary hearing on the issue of temporary custody. The hearing was scheduled for February 2001. On January 3, 2001, and on February 7, 2001, Husband filed motions to continue the evidentiary hearing. On February 8, 2001, the trial court held a pretrial hearing in which trial was set and the motion to continue the evidentiary hearing was granted. Since a hearing was held in January 2000 and Husband sought to continue a formal hearing on two occasions, there was no due process violation. See Nelson v. Jacobsen, 669 P.2d 1207, 1211 (Utah 1983) (noting that notice and an opportunity to be heard are "the very heart of" procedural due process). Also, because Husband chose to rely on his erroneous belief that a stay was appropriate because of the Hague petition under appeal, and failed to take advantage of scheduled hearings, Husband invited any error in the grant of temporary custody. See State v. Chaney, 1999 UT App 309,¶54, 989 P.2d 1091 (concluding that defendant invited error complained of and cannot take advantage of such error).

Husband next alleges that the trial court erred by failing to order an investigation of Husband's allegations of child abuse. Utah Code Ann. § 30-3-5.2 (Supp. 1999) provides:

When, in any divorce proceeding or upon a request for modification of a divorce decree, an allegation of child abuse or child sexual abuse is made, implicating either party, the court, after making an inquiry, may order that an investigation be conducted by the Division of Child and Family Services . . . .

(Emphasis added.). Thus, the court was not required to order an investigation.(4) See Salt Lake County v. American Sur. Co. of N.Y., 63 Utah 98, 222 P. 600, 603 (1924) (recognizing that the language of a statute is permissive when the term "may" is used).

Husband also contends that the trial court failed to take notice of or review Wife's history of instability and abusive behavior. "In divorce proceedings, including custody matters, the trial court is accorded particularly broad discretion. Only where the trial court's judgment is so flagrantly unjust as to be an abuse of discretion, will this Court interpose its own judgment." Shioji v. Shioji, 712 P.2d 197, 201 (Utah 1985). In this case, the trial court found, based upon an evaluation by a licensed psychologist, that Wife "function[s] effectively" and that there was no indication that Wife was unduly strict or harsh to the children. The only alternative evidence to support a finding to the contrary was the bald allegation of Husband. Thus, the trial court did not abuse its discretion in finding Wife effective and non-abusive.(5)

Next, Husband claims that the trial court erred in denying him the opportunity for representation by telephone. This allegation is without merit. The record reveals that on at least two occasions Husband participated in proceedings by telephone. On December 6, 2000, Husband conducted oral argument by telephone and, on February 9, 2001, a telephone conference was held. Thus, Husband was not denied the opportunity for representation by telephone.

Husband also claims that the trial court erred in failing to grant at least three continuances. "Trial courts have substantial discretion in deciding whether to grant continuances." Christenson v. Jewkes, 761 P.2d 1375, 1377 (Utah 1988); see Utah R. Civ. P. 40. The record reflects that although Husband was denied at least one continuance, he was granted continuances on two other motions. Moreover, Husband does not provide any evidence that the trial court was unreasonable in its decision. See Holbrook v. Master Prot. Corp., 883 P.2d 295, 299 (Utah Ct. App. 1994) (noting that trial court decision will not be disturbed unless clearly unreasonable and arbitrary). The trial court was acting within its discretion in determining whether each continuance was appropriate.

Husband next contends that the trial court abused its discretion in not allowing Husband time to find private counsel. This argument is without merit. Husband was represented by counsel when Wife filed her complaint on June 30, 1999. Counsel withdrew on February 16, 2000. On February 7, 2001, a notice of appearance was filed by different counsel. Husband was represented by the second attorney until August 30, 2001, thirty days after the divorce decree was entered. Because Husband had over a year to obtain counsel and the second attorney had at least four months to prepare for trial on June 18, 2001, the trial court did not abuse its discretion.

Husband also asserts that the trial court erred when it granted Wife's motion for default at trial on June 18, 2001, despite advance notice of Husband's abstention. A party seeking relief from a default judgment must proceed under rule 60(b) of the Utah Rules of Civil Procedure by submitting a motion for relief from judgment with the trial court. See State v. Sixteen Thousand Dollars U.S. Currency, 914 P.2d 1176, 1178 (Utah Ct. App. 1996); see also Utah R. Civ. P. 60(b). Thus, we are unable to consider Husband's direct appeal from the default judgment. See Sixteen Thousand Dollars U.S. Currency, 914 P.2d at 1178-79.

Husband next challenges the trial court's grant of a temporary restraining order. In order for the court to issue a temporary restraining order, it must find (1) irreparable harm, (2) threatened injury that outweighs damage caused by the order, (3) the order would not be adverse to public interest, and (4) substantial likelihood of prevailing on the merits of the underlying claim. See Utah R. Civ. P. 65A(e). The order itself need only "define the injury and state why it is irreparable." Id. at 65A(b)(2). Here, the court determined that a temporary restraining order was necessary to prevent the children from being removed from the state or from being subjected to verbal or emotional abuse in violation of an earlier order. Thus, the court correctly issued the temporary restraining order. Furthermore, the issue is now moot because the temporary restraining order has since expired. See Ellis, 2000 UT 101 at ¶25.

Next, Husband alleges that the trial court failed to take notice of Husband's pro se motions, objections, and requests for rulings. Upon review of the record, we conclude that Husband's contention is without merit. During the time Husband was acting pro se, the trial court ruled on orders to show cause, continued the pre-trial conference, held oral argument by telephone, and continued Husband's depositions. However, Husband alleges that the trial court failed to acknowledge his objections to the commissioners' recommendations, failed to rule on a petition to bifurcate, and failed to acknowledge Husband's request to strike the late filing of Wife's objection. Even if the trial court should have addressed each of Husband's objections, petitions, and requests, any error resulting from such failure is harmless because there is no evidence in the record that such motions would have been granted even if explicitly ruled upon, or that the outcome of the divorce proceedings would have been different. See State v. Evans, 2001 UT 22,¶20, 20 P.3d 888 (defining harmless error as "an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings").

Husband further argues that the trial court erred in upholding Commissioner Thomas Arnett's decision to grant temporary relief to Wife because Commissioner Arnett had a conflict of interest from allegedly representing Husband in a prior proceeding. The trial court is never bound by a commissioner's recommendation. See Kessimakis v. Kessimakis, 1999 UT App 130,¶5 n.2, 977 P.2d 1226; see also Utah Code Jud. Admin. R6-401 (setting forth authority of domestic relations commissioners). Thus, "ultimate judicial power remains with the [trial court] judge." State v. Thomas, 961 P.2d 299, 302 (Utah 1998).

Because the trial court was aware of Husband's objections to the commissioner's recommendations and was aware of Husband's concern about a potential conflict of interest with Commissioner Arnett prior to entering its order and recommendation granting temporary relief to Wife, any potential conflict of interest was adequately addressed by the trial court. Furthermore, the conflict was resolved when Commissioner Arnett subsequently and voluntarily recused himself. Therefore, the trial court did not err in entering its order and recommendation.

Husband contends that the trial court erred by failing to order counseling or mediation. "In divorce proceedings, . . . the trial court is accorded particularly broad discretion." Shioji, 712 P.2d at 201. To support his argument, Husband relies on Utah Code Ann. § 30-3-11.1 (1998), which states that the purpose of the Family Court Act is to provide "the courts with further assistance for family counseling." However, the section is merely a statement of purpose and does not impose any mandatory duties upon the court to order counseling or mediation. On the contrary, one section of the act which describes the powers of commissioners has been amended to remove a provision requiring completion of mandatory mediation. See Utah Code Ann. § 30-3-15.3 amendment notes (1998). Additionally, the act establishes a mandatory divorce education course "to educate and sensitize divorcing parties to their children's needs both during and after the divorce process." Utah Code Ann. § 30-3-11.3(1) (1998).

In this case, the parties were eventually referred to mediation, but the case was referred back to the trial court. Also, according to the record, Husband failed to attend the mandatory divorce education class. Meanwhile, Wife independently completed the course. Because Husband failed to participate in not only the mandatory divorce education course, but also in the required custody evaluation and psychological assessment ordered by the court, we conclude the trial court did not commit any error.

Husband challenges the trial court's decision to grant sole custody to Wife because Wife abducted the children in violation of his custodial rights.(6) "In determining permanent physical custody of a minor child, trial judges are accorded broad discretion." Tucker, 910 P.2d at 1214. "'Only where the trial court action [of awarding child custody] is so flagrantly unjust as to constitute an abuse of discretion should the appellate forum interpose its own judgment.'" Lembach v. Cox, 639 P.2d 197, 201 (Utah 1981) (citation omitted), overruled on other grounds by Pusey v. Pusey, 728 P.2d 117 (Utah 1986). "In determining custody, the court shall consider the best interests of the child and the past conduct . . . of each of the parties." Utah Code Ann. § 30-3-10 (Supp. 2002). Several factors were considered by the court in granting custody to Wife, including the court's observations of Wife, Husband's treatment of Wife and the children, the children's present disposition, the children's friendships and associations, and the court-appointed expert's assessment of Wife and the children. In addition, there has never been an adjudication that Wife wrongfully removed the children. Because the trial court's custody determination is supported by the evidence, the trial court did not abuse its discretion in awarding custody of the children to Wife.

Husband's final claim is that the trial court's financial orders and assessments are not supported by factual findings. "[I]n order to challenge a trial court's findings of fact on appeal, the challenger 'must marshal all the evidence in support of the findings and then demonstrate that the evidence is insufficient to support the findings in question.'" Marshall v. Marshall, 915 P.2d 508, 516 (Utah Ct. App. 1996) (citation omitted). Thus, we uphold the trial court's findings of fact and affirm the awards because Husband has failed to appropriately marshal all of the evidence. See id.

Even if we were to consider Husband's challenge to the trial court's awards of alimony, child support, and attorney fees, we would conclude the trial court's findings were sufficient. First, the trial court is given considerable discretion in awarding alimony and child support. See, e.g., Breinholt v. Breinholt, 905 P.2d 877, 879 (Utah Ct. App. 1995) (alimony); Baker v. Baker, 866 P.2d 540, 544-45 (Utah Ct. App. 1993) (child support). Also, authority has been given to the trial court to grant attorney fees in divorce proceedings. See Utah Code Ann. § 30-3-3 (Supp. 2002). Second, the trial court reviewed Husband's tax returns, Husband's current employer benefits, Wife's tax returns and financial records, Wife's living expenses, and Wife's expenses in the divorce proceedings, as well as the Hague proceedings, in making its findings. Thus, the financial awards were adequately supported by the findings of the trial court.

Therefore, we affirm.
 
 

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

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge

1. In addition, Husband recently filed a motion to stay the decree of divorce pending resolution of his appeal with this court. Because this decision renders the necessity of a stay moot, we deny Husband's motion.

2. Husband also alleges that the court should have declined jurisdiction because Wife abducted the children. See Utah Code Ann. § 78-45c-8(2) (1996) (stating that a court may decline jurisdiction if petitioner wrongfully took child from another state or engaged in reprehensible conduct). Because there has been no adjudication that Wife wrongfully took the children, the provision may not be applicable. Regardless, the court has discretion to decide whether to exercise jurisdiction. See Salt Lake County v. American Sur. Co. of N.Y., 63 Utah 98, 222 P. 600, 603 (1924) (recognizing that the language of a statute is permissive when "may" is used).

3. In addition, the UCCJA allows a court to decline to exercise jurisdiction under the UCCJA if a custody determination is incidental to an action for divorce while retaining jurisdiction over the divorce proceeding. See Utah Code Ann. § 78-45c-7(6) (1996).

4. In fact, the statute was amended in 1999 to remove the term "shall" and insert the term "may."

5. Moreover, Husband fails to satisfy the marshaling requirement for challenging the trial court's findings of fact. See In re W.S., 939 P.2d 196, 199 (Utah Ct. App. 1997) (noting that challenges to factual findings require appellant to first marshal all evidence that supports the findings and then demonstrate that, despite the evidence, the findings are clearly erroneous).

6. Again, Husband has failed to satisfy the marshaling requirement for challenging the trial court's findings. See In re W.S., 939 P.2d 196, 199 (Utah Ct. App. 1997).