Swapp v. Swapp

Swapp v. Swapp

IN THE UTAH COURT OF APPEALS
 

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Yayoi M. Swapp,

Plaintiff and Appellant,

v.

Craig Richard Swapp,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040287-CA
 

F I L E D
(June 10, 2004)
 

2004 UT App 192

 

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Fourth District, Provo Department

The Honorable Lynn W. Davis

Attorneys: James L. Driessen, Lindon, for Appellant

James G. Clark, Provo, for Appellee

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Before Judges Billings, Greenwood, and Orme.

PER CURIAM:

Yayoi Swapp (Wife) appeals the trial court's denial of her motion to set aside a default judgment and divorce decree. This matter is before the court on cross motions for summary disposition.

Wife filed a complaint for divorce from Craig Swapp (Husband) in 2002. Over the course of the divorce proceedings, Wife failed to appear at numerous hearings and failed to comply with court orders, including an order compelling discovery. The trial court noted in its order that if Wife failed to comply with the discovery order, her pleadings would be stricken and Husband would be allowed to proceed uncontested.

Wife failed to appear at an October 3, 2003 show cause hearing at which the entry of her default for failing to comply with discovery orders was to be heard. The trial court entered Wife's default at the hearing, noting her failure to appear, her failure to comply with court orders, and her failure to respond to Husband's amended answer and counterclaim. The final findings of fact, conclusions of law, divorce decree, and default certificate were signed and entered on October 22, 2003. Wife timely filed a motion to set aside the default judgment pursuant to rule 60(b) of the Utah Rules of Civil Procedure. The trial court denied the motion.

Wife requests this court to reverse the trial court based on manifest error. She asserts that two findings of fact by the court create an extremely unfair property division, and that her absence from the hearing was due to emotional duress. Wife does not specify any basis for legal error, however, and does not provide any argument supporting her position.

Husband asserts that the grounds for Wife's motion to set aside provide no substantial question for review. See Utah R. App. P. 10(a)(2)(A). Wife argued that the default should be set aside because she was not served with the order to show cause, or alternatively, on the basis of mistake. Under the facts of this case, neither of these grounds present substantial questions for review.

A trial court's denial of a motion to set aside a judgment pursuant to Utah Rule of Civil Procedure 60(b) is generally reversed only for abuse of discretion. See Classic Cabinets, Inc. v. All Am. Life Ins. Co., 1999 UT App 88,¶9, 978 P.2d 645. A challenge to jurisdiction based on improper service presents a mixed question of law and fact: The determination of jurisdiction is a matter of law, predicated on a determination of proper service, a matter of fact. See Cooke v. Cooke, 2001 UT App 110,¶7, 22 P.3d 1249. This court will overturn a trial court's findings of fact only if they are against the clear weight of the evidence. See id.

The constable filed with the trial court a proof of service listing the documents served, including the order to show cause. The documents were served on Wife personally at her workplace. A constable's return of service is presumptively correct and is prima facie evidence of proper service. See Classic Cabinets, Inc., 1999 UT App 88 at ¶12. A challenger must prove, by clear and convincing evidence, that service was improper. See id. at ¶13.

Wife admits that papers were personally served on her, but alleges that the order to show cause was not among them. Wife's assertion does not carry her burden of showing improper service by clear and convincing evidence. See State ex rel. Kirby v. Jacoby, 1999 UT App 52,¶16, 975 P.2d 939. She has not offered "any documentary or other compelling evidence" to support her assertion. Id. The trial court's finding that service was proper is not against the weight of the evidence.

Where a party does not offer a reasonable excuse for nonappearance, there is no requirement for a trial court to exercise its discretion to set aside a judgment. See Heath v. Mower, 597 P.2d 855, 858 (Utah 1979). A party attempting to set aside a default "must show that he has used due diligence and that he was prevented from appearing by circumstances over which he had no control." Id. at 859 (internal quotations and citation omitted). Moreover, a prerequisite for seeking relief from a default judgment is that the party comes to the court in good faith. See Chrysler v. Chrysler, 5 Utah 2d 415, 303 P.2d 995, 996-97 (1956).

Not only did Wife fail to provide any reasonable excuse for her failure to appear, the trial court found that she did not come in good faith. Based on her numerous prior failures to appear, and her representation that she did not receive the order to show cause in the face of the constable's proof of service, the trial court found Wife lacked good faith in pursuing her motion to set aside the default. The trial court's finding is supported by the record. Wife's own conduct, therefore, precludes relief under rule 60(b).

In addition, the default judgment was entered on grounds other than Wife's failure to appear at the order to show cause hearing. These other reasons were not addressed by Wife in either her motion to set aside or her appeal. The trial court entered her default based on her failure to respond to Husband's amended answer and counterclaim, and her failure to comply with discovery orders. Wife did not submit a proposed answer to the counterclaim with her motion papers, nor did she ever explain or correct her failure to respond to discovery. As a result, the substantive bases for the default remain unchallenged.

Wife's motion for summary reversal is denied. Husband's motion for summary affirmance is granted, and accordingly, the trial court's denial of Wife's motion to set aside the judgment is affirmed.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge