Colleli v. Colleli

Colleli v. Colleli

IN THE UTAH COURT OF APPEALS
 

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Dawn D. Colleli,

Petitioner and Appellant,

v.

Ralph D. Colleli,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030666-CA
 

F I L E D
(September 16, 2004)
 

2004 UT App 318

 

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Third District, Salt Lake Department

The Honorable Anthony B. Quinn

Attorneys: Michael A. Jensen, Salt Lake City, for Appellant

Steven C. Russell, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    Dawn Colleli (Wife) appeals from orders entered by the trial court determining various postdivorce decree issues. The only issue properly before this court is the matter of attorney fees awarded in a February 2003 order.

    District courts have continuing jurisdiction in divorce proceedings. See Utah Code Ann. § 30-3-5(3) (1998 & Supp. 2003). As a result, "several orders in a single divorce proceeding may be final and appealable." Copier v. Copier, 939 P.2d 202, 203 (Utah Ct. App. 1997) (per curiam). Postjudgment orders "are independently subject to the test of finality, according to their own substance and effect." Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982). Where the effect of a postjudgment order is to determine substantial rights and end the litigation regarding a specific issue in a divorce proceeding, the order will be a final order for purposes of appeal. See id. Orders resolving controversies raised in orders to show cause are final orders. See In re B.B., 2002 UT App 82,¶8, 45 P.3d 527.

    The trial court's order of February 6, 2002, resolved Wife's motion for an order to show cause filed in December 2001. Wife's right to alimony under a modified divorce decree was at issue. The trial court found that Wife was not entitled to alimony. The February 2002 order determined the substantial rights of the parties regarding alimony under the modified decree, and ended litigation on that point. It was a final, appealable order.

    Likewise, the order entered in May 2003 was a final, appealable order. Ralph Colleli (Husband) moved the court for a judgment against Wife for past due child support and medical expenses. The trial court entered a final money judgment against Wife in specific amounts for the outstanding items. The judgment determined the substantial rights of the parties and resolved the issue of amounts owed, leaving no question open.

    Wife did not file a notice of appeal from either of these two orders, and has thus waived appeal on these issues.

    The sole remaining issue is the trial court's award of attorney fees, specifically its determination that "reasonable fees" for prosecuting Wife's petition to modify the divorce decree were $3000.00. A trial court has "'broad discretion in determining what constitutes a reasonable fee.'" Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998) (quoting Dixie State Bank v. Bracken, 764 P.2d 985, 991 (Utah 1988)). Such discretion is granted because the trial court "is in a better position than an appellate court to gauge the quality and efficiency of the representation and the complexity of the litigation." Id. at 317 (quotations and citation omitted). Thus, a trial court's calculation of a reasonable attorney fee "will not be overturned in the absence of a showing of a clear abuse of discretion." Dixie State Bank, 764 P.2d at 988.

    In determining attorney fees, trial courts may consider several factors, including "'the difficulty of the litigation, the efficiency of the attorneys in presenting the case, [and] the reasonableness of the number of hours spent on the case.'" Cottonwood Mall Co. v. Sine, 830 P.2d 266, 269 (Utah 1992) (quoting Cabrera v. Cottrell, 694 P.2d 622, 625 (Utah 1985)). Here, the trial court found that the issues were narrow, not factually complex, and were substantially settled several months before trial with the exception of attorney fees. The trial court reviewed the billing records presented and determined that much of the work was not necessary for such narrow issues. After reviewing "every entry," the court noted "[i]t appears that the litigation over attorney's fees has dominated the way this case was pursued." The court found that "[t]he attorney fees charged in this case are excessive given the limited assets of the parties, the narrow issues in the case and the results obtained." Ultimately, the court determined that $3000.00 was a reasonable fee given the complexity of the litigation.

    Wife has not shown that the trial court has clearly abused its discretion in calculating reasonable attorney fees given the issues involved and the result. She has failed to marshal the evidence in support of the trial court's findings, and instead argues selected facts favorable to her position. Contrary to her position, however, the trial court's determination was supported by its findings of fact based on its review of the billing records, its familiarity with the case, its determination of the complexity of the issues, its consideration of the necessity of some of the work, and its evaluation of the result. The trial court did not abuse its discretion.

    Accordingly, we affirm. Husband's request for attorney fees on appeal is denied, but he is awarded his costs pursuant to rule 34 of the Utah Rules of Appellate Procedure.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge