Mitchell v. Mitchell

----ooOoo----

Ruth Leila Mitchell
aka Ruth Foulger,
Petitioner and Appellant,

v.

Donald R. Mitchell,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010711-CA

F I L E D
November 29, 2002 2002 UT App 403 -----

Third District, Salt Lake Department
The Honorable Anne M. Stirba

Attorneys:
W. Kevin Jackson, Salt Lake City, for Appellant
Douglas T. Hall, Midvale, for Appellee -----

Before Judges Billings, Bench, and Greenwood.

BILLINGS, Associate Presiding Judge:

Ruth L. Foulger (Wife) appeals from an order granting summary judgment to Donald R. Mitchell (Husband), and dismissing Wife's petition to modify the 1977 Decree of Divorce to include Husband's retirement benefits. Wife argues the trial court incorrectly concluded that Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988) and Ostler v. Ostler, 789 P.2d 713 (Utah Ct. App. 1990), require dismissal of Wife's petition to modify the divorce decree.

Wife first claims the original trial court improperly failed to include Husband's retirement benefits in the 1977 Decree of Divorce. In Throckmorton, 767 P.2d at 123, this court noted Utah law first recognized retirement benefits as marital assets in Woodward v. Woodward, 656 P.2d 431 (Utah 1982). Because Woodward was decided five years after Wife's divorce, the original trial court's omission of Husband's retirement benefits in this case did not violate the statutory duty to divide the Mitchell marital estate. Furthermore, absent a "substantial change of circumstances," "[t]he doctrine of res judicata applies in divorce actions." Throckmorton, 767 P.2d at 123. Res judicata precludes consideration of "'issues which the party had a fair opportunity to present and have determined in the [previous] proceeding.'" Id. (citation omitted). Thus, Wife's failure to mention Husband's retirement benefits during the divorce proceeding barred her from claiming those benefits as an omitted asset in her petition to modify the divorce decree.

Wife next argues that even if the original trial court properly omitted Husband's retirement benefits from the marital estate, the current trial court must consider whether Wife's changed circumstances are substantial and warrant a division of Husband's retirement benefits accumulated during the marriage.

Under Utah Code Ann. § 30-3-5(3) (Supp. 2002), the trial court has "continuing jurisdiction" over divorces, which includes the power to modify initial property distributions,(1) id., upon finding a "substantial change of circumstances." Throckmorton, 767 P.2d at 123. However, Throckmorton holds that "the legal principles articulated in Woodward" cannot be applied retroactively. Throckmorton, 767 P.2d at 124. Because Woodward did not recognize retirement benefits as marital assets until after Wife's divorce, see Throckmorton, 767 P.2d at 123, Wife has no right to Husband's retirement benefits, even upon a showing of substantially changed circumstances. An order granting Wife access to husband's retirement funds would, in effect, retroactively apply Woodward and violate Throckmorton.(2)

Wife insists Throckmorton only holds that a change in the law alone is insufficient to constitute a substantial change of circumstances. This court's approach in Ostler suggests otherwise. As here, the appellant's divorce in Ostler occurred before Woodward, yet the appellant claimed entitlement to her husband's retirement benefits because of unforeseen health and economic difficulties. See Ostler, 789 P.2d at 714. Relying on Throckmorton, we concluded the appellant "articulated no change of circumstance justifying a reevaluation of the original property division," and made special note of the "'policy interest favoring the finality of property settlements.'" Ostler, 789 P.2d at 717 (quoting Throckmorton, 767 P.2d at 124). Accordingly, we conclude the trial court correctly ruled Throckmorton and Ostler require dismissal of Wife's petition to modify her decree of divorce.

Husband contends Wife's appeal is frivolous and requests attorney fees under rule 33 of the Utah Rules of Appellate Procedure. Although the trial court did not award attorney fees, "when an appeal is frivolous, . . . we will award fees regardless of the trial court's ruling on fees." Burt v. Burt, 799 P.2d 1166, 1171 (Utah Ct. App. 1990). However, "[t]he sanction for filing a frivolous appeal applies only in 'egregious cases' with no 'reasonable legal or factual basis.'" Cooke v. Cooke, 2001 UT App 110,¶14, 22 P.3d 1249 (citation omitted). Although Wife's arguments are based on an improperly narrow reading of Throckmorton and Ostler, "we cannot say that this is an egregious case where all competent counsel would recognize the arguments made on appeal are without merit." Farrell v. Porter, 830 P.2d 299, 302 (Utah Ct. App. 1992). We therefore decline to award fees.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. Although trial courts can modify initial property distributions, they are "entitled to a greater sanctity than alimony and support payments in proceedings to modify divorce decrees." Chandler v. West, 610 P.2d 1299, 1300 (Utah 1980) (citing Land v. Land, 605 P.2d 1248 (Utah 1980)).

2. Wife also argues the trial court erroneously denied her more time to conduct discovery. However, "the trial court is granted broad latitude in handling discovery matters," R & R Energies v. Mother Earth Indus., 936 P.2d 1068, 1079 (Utah 1997), and Wife's brief does not demonstrate a "'reasonable likelihood [any] error affected the outcome of the proceedings.'" Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991) (citations omitted).