Horton v. Khvtisiashvili

Horton v. Khvtisiashvili

IN THE UTAH COURT OF APPEALS

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Walter John Horton,
Appellant,

v.

Tamriko Khvtisiashvili,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020275-CA

F I L E D
(October 17, 2003)

2003 UT App 350

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Third District, Salt Lake Department

The Honorable Glenn Iwasaki

Attorneys: Walter John Horton, Salt Lake City, Appellant Pro Se

Suzanne Marelius, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Thorne.

THORNE, Judge:

Walter John Horton appeals from the trial court's denial of Horton's motion to set aside a supplemental decree of divorce. We affirm.

Horton asserts eight claims on appeal, however, the only issue properly before this court is the propriety of the court's denial of his rule 60(b) motion. See Utah R. Civ. P. 60(b).

[E]ven when an order on a Rule 60(b) motion is appealable, the appeal is narrow in scope. An appeal of a Rule 60(b) order addresses only the propriety of the denial or grant of relief. The appeal does not, at least in most cases, reach the merits of the underlying judgment from which relief was sought. Appellate review of Rule 60(b) orders must be narrowed in this manner lest Rule 60(b) become a substitute for timely appeals. An inquiry into the merits of the underlying judgment or order must be the subject of a direct appeal from that judgment or order.

Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110,¶19, 2 P.3d 451 (quotations and citation omitted); see also State v. Putnik, 2002 UT 122,¶¶3-4, 63 P.3d 91 (noting that absent the submission of a motion that tolls the time, a petitioner has 30 days following the entry of a final order or judgment within which he must file his notice of appeal or lose the right to appeal the judgment).(1)

Here, after careful consideration, the trial court issued its order denying Horton's motion to set aside the supplemental divorce decree. Thirty days after the court issued its order, and six months or more after the trial court issued the initial divorce decree and the supplemental divorce decree, Horton filed his notice of appeal. Thus, we have no jurisdiction over Horton's claims directly involving his divorce proceedings. See Franklin Covey Client Sales, Inc., 2000 UT App 110 at ¶¶19, 24.(2)

Upon review, we conclude that the trial court acted well within the substantial limits of its discretion in denying Horton's motion to set aside. See Ostler v. Buhler, 957 P.2d 205, 206 (Utah 1998). In his motion, Horton argued that the supplemental divorce decree was entered either by "mistake, inadvertence, surprise, excusable neglect or fraud, misrepresentation or other misconduct." He additionally argued that the decree was no longer equitable. Instead of submitting a memorandum in support of his claims, Horton filed an affidavit wherein he challenged the content of paragraph 2(a) of the supplemental decree. Horton's affidavit also asserted that his prior counsel had failed to adequately represent him and that counsel had been "incompetent in these proceedings." However, in failing to file a memorandum in support of his 60(b) motion, Horton failed to present the trial court with any legal authority or analysis to support his claims. Furthermore, Horton's affidavit did nothing more than make several bald assertions concerning the performance of his prior counsel. Thus, the trial court acted well within its permitted range of discretion in denying Horton's motion to set aside the supplemental divorce decree.(3)

Finally, Tamrika Khvtisiashvili (Wife) argues that she should be awarded the costs of attorney fees on appeal, under either rule 33 of the Utah Rules of Appellate procedure, or, effectively, under Utah Code Annotated section 30-3-3(1) (1998). See Bolliger v. Bolliger, 2000 UT App 47,¶26, 997 P.2d 903. We decline, however, to award fees in this case.

First, section 30-3-3(1) is applicable to proceedings "to establish an order of custody, visitation, child support, alimony, or division of property in a domestic case," including modification proceedings. Utah Code Ann. § 30-3-3(1); see Bolliger, 2000 UT App 47 at ¶26. Here, rather than a proceeding under Title 30, we are presented with an appeal from a motion to set aside. While it may be possible, under some circumstances, to interpret a motion to set aside as implicating Title 30, this case does not present such circumstances. Accordingly, we decline to award fees pursuant to section 30-3-3(1).

Second, under rule 33 "[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). In the instant case, although Horton's appeal is, ultimately, unsuccessful, we conclude that it does not present an "'egregious case'" worthy of an award of damages. Id. (citation omitted). We do, however, award Wife her taxable costs under rule 34 of the Utah Rules of Appellate Procedure.

Accordingly, we affirm the trial court's denial of Horton's motion to set aside and award Wife her costs on appeal, to be determined upon remand pursuant to rule 34(d) of the Utah Rules of Appellate Procedure.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Judith M. Billings,

Associate Presiding Judge

1. Rule 60 of the Utah Rules of Civil Procedure is not among the motions that toll the time for the filing of a notice of appeal. See Sittner v. Schriever, 2000 UT 45,¶21, 2 P.3d 442 (noting that rule 60(b) motions do not "extend the time for taking an appeal" (quotations and citations omitted)); Kurth v. Wiarda, 1999 UT App 153,¶5, 981 P.2d 417 (noting which motions in particular toll the time for the filing of a notice of appeal).

2. We note that had the trial court granted the motion and amended the supplemental divorce decree based on Horton's motion, it is possible that some or all of Horton's claims would have fallen under our jurisdiction. See Schriever, 2000 UT 45 at ¶22 (stating "if the court grants the rule 60(b) motion and enters a new judgment, the time for appeal will date from the entry of that judgment" (quotations, citation, and alterations omitted)). However, while the trial court did amend the supplemental decree, it did so sua sponte under rule 60(a) of the Utah Rules of Civil Procedure. See Meagher v. Equity Oil Co., 5 Utah 2d 196, 299 P.2d 827, 830 n.4 (1956). Changes made to a judgment pursuant to rule 60(a) neither toll the time available for the filing of a notice of appeal, nor do they reset the clock for filing an appeal. See generally Schriever, 2000 UT 45 at ¶¶21-23. Moreover, at no time does Horton argue that the trial court's actions had the effect of extending the time available to him for filing a notice of appeal. Thus, absent substantive, well-developed argument on this issue, we decline to pursue it any further. See Smith v. Smith, 1999 UT App 370,¶¶8-9, 995 P.2d 14 (refusing to address issues where the "analysis . . . [is] so lacking as to shift the burden of research and argument to the reviewing court" (quotations and citation omitted)).

3. On appeal, Horton argues that the trial court erred in not granting him attorney fees resulting from his rule 60(b) motion. However, because we can see no evidence that Horton raised a claim for fees before the trial court, and does not argue any of the applicable exceptions to the preservation rule on appeal, we do not address this argument. See Coleman v. Stevens, 2000 UT 98,¶9, 17 P.3d 1122.