Phelps v. Phelps

IN THE UTAH COURT OF APPEALS

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Shirley Hoyt Anderson Phelps,
Petitioner and Appellee,

v.

Wayne Ellsworth Phelps,
Respondent and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020926-CA
 

F I L E D
(July 10, 2003)
 

2003 UT App 235

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Fourth District, Provo Department

The Honorable Fred Howard

Attorneys: Wayne Phelps, St. George, Appellant Pro Se

Kelly H. Anderson, Orem, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

Appellant Wayne Phelps appeals the Final Decree of Divorce "on the ground that Utah's no-fault divorce law violates the free exercise clauses of the Utah and Federal Constitutions." This case is before the court on Appellee Shirley Hoyt Anderson's motion for summary affirmance on the basis that the appeal presents an insubstantial question, i.e., that the sole issue raised on appeal was not preserved in the trial court.

"As a general rule, appellate courts will not consider an issue raised for the first time on appeal." State v. Amoroso, 1999 UT App. 60,¶7, 975 P.2d 505. "[T]he preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that 'exceptional circumstances' exist or 'plain error' occurred." State v. Cram, 2002 UT 37,¶9, 46 P.3d 230. Phelps contends that the constitutional claim was preserved because letters stating his objections to the divorce on religious grounds appear in the record as attachments to filings. The contention is without merit. The constitutional issue he seeks to raise on appeal was never articulated in any motion or pleading filed by Phelps's counsel; accordingly, it was never submitted to the district court for a ruling on the constitutionality of Utah's no-fault divorce laws. We conclude that the issue was not preserved for
appeal.

Phelps contends, in the alternative, that the district court committed plain error in the entry of the divorce despite his objections on religious grounds. His contention is that entry of the divorce was plainly erroneous because his objections were religiously-based. This claim does not establish that the application of the divorce statutes was unconstitutional as applied to Phelps. Furthermore, both this court and the district court must "presume the legislation being challenged is constitutional" and "resolve any reasonable doubts in favor of constitutionality." Grand County v. Emery County, 2002 UT 57, ¶6, 52 P.3d 1148.

The issue raised on appeal was not preserved, and Phelps has demonstrated neither plain error nor exceptional circumstances that would allow this court to consider the issue on appeal. Accordingly, we affirm the decree of divorce.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge