Archibald v. Archibald

Archibald v. Archibald

IN THE UTAH COURT OF APPEALS
 

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Michelle Amiot Archibald,

Petitioner and Appellee,

v.

Keith Justin Archibald,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030553-CA
 

F I L E D
(February 10, 2005)
 

2005 UT App 61

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Budge W. Call and F. Kevin Bond, Salt Lake City, for Appellant

Bart J. Johnsen, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Greenwood.

DAVIS, Judge:

    The issue before this court is whether the trial court had jurisdiction under Utah Code section 30-3-1 when it issued a decree of divorce to Petitioner Michelle Amiot Archibald and Respondent Keith Justin Archibald. See Utah Code Ann. § 30-3-1 (1998).

    Respondent first argues that trial court did not have jurisdiction to issue the decree of divorce because it relied on Petitioner's residency for jurisdiction. "We review a lower court's determination of whether it has subject matter jurisdiction under a correction of error standard." Burns Chiropractic Clinic v. Allstate Ins. Co., 851 P.2d 1209, 1211 (Utah Ct. App. 1993). "Generally, however, the determination of residency for divorce purposes is a mixed question of law and fact." Bustamante v. Bustamante, 645 P.2d 40, 43 (Utah 1982).

    Utah Code section 30-3-1(2) provides that jurisdiction in divorce matters is proper "in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought . . . for three months next prior to the commencement of the action." Utah Code Ann. § 30-3-1(2) (emphasis added). Because the Utah Code explicitly states that the court's jurisdiction may be based upon either the petitioner's or respondent's residency, the trial court properly determined that it had jurisdiction when it found that Respondent was an actual and bona fide resident of Salt Lake County for three months prior to Petitioner's filing for divorce. We conclude that the court had jurisdiction under section 30-3-1(2) regardless of what was contained in Petitioner's complaint or affidavit of jurisdiction.(1)

    Respondent further argues that there was insufficient evidence to support the trial court's determination that he was an actual and bona fide resident of Salt Lake County for the three months preceding Petitioner's filing for divorce. "[W]e review the trial court's findings of fact for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made." ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997). We also recognize "the advantaged position of the trial court for adjudging the frankness, candor[,] and credibility of the witnesses." Gardner v. Gardner, 118 Utah 496, 222 P.2d 1055, 1057 (1950).

    Under Utah law, "'one retains his residence or domicile until he acquires a new one.'" Travelers/Aetna Ins. Co. v. Wilson, 2002 UT App 221,¶14, 51 P.3d 1288 (quoting Dodge v. Evans, 716 P.2d 270, 275 (Utah 1985)). The trial court found that "Respondent did not reside in the Las Vegas home of Petitioner and that he remained a resident of Salt Lake County during the time in question." The trial court's findings were supported by the following evidence: "During the relevant time period, Respondent did not change his driver's license or his car registration in Utah, he remained employed at the same employer, and never resided with any regularity in the Las Vegas home or any other Nevada residence." The court did not find persuasive or believable Respondent's testimony that he resided in Las Vegas with Petitioner and their children. The court determined that Respondent's testimony was "not persuasive in the face of Petitioner's believable evidence to the contrary and that of Diana Colombo, who was a neighbor in Las Vegas, together with the reasonable inferences of residing together after announcing a divorce."

    We conclude that there is substantial evidence in the record to support the findings below that the Respondent did not abandon his residency in Salt Lake County. Therefore, the trial court had jurisdiction to issue the decree of divorce.

    Finally, Petitioner argues that Respondent should be ordered to pay Petitioner her attorney fees and costs because she asserts that Respondent's appeal is frivolous. Rule 33 of the Utah Rules of Appellate Procedure provides that "a frivolous appeal, motion, brief, or other paper is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law." Utah R. App. P. 33(b). We conclude that Respondent's appeal was not frivolous or
unwarranted. As a result, we decline to award attorney fees in this matter.

    Affirmed.

______________________________

James Z. Davis, Judge

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WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

1. Federal courts, relying on Federal Rule of Civil Procedure 8, which, unlike Utah Rule of Civil Procedure 8, requires that a complaint contain a specific averment of jurisdiction, have determined whether jurisdiction is evident on the record although not contained in the complaint. See 27 Federal Procedure, Lawyers Edition § 62:43 (Russell J. Davis et al. eds., 1996). Because rule 8 of both the Utah Rules of Civil Procedure and the Federal Rules of Civil Procedure are substantively similar, see Utah R. Civ. P. 8 Compiler's Notes ("This rule is substantially the same as [r]ule 8, [Federal Rules of Civil Procedure]."), "we freely refer to authorities which have interpreted the federal rule." Gold Standard, Inc. v. American Barrick Res. Corp., 805 P.2d 164, 168 (Utah 1990); see Tucker v. State Farm Mut. Auto. Ins. Co., 2002 UT 54,¶7 n.2, 53 P.3d 947 ("Interpretations of the Federal Rules of Civil Procedure are persuasive where the Utah Rules of Civil Procedure are 'substantially similar' to the federal rules." (citations omitted)). In discussing the consequences of failing to include a jurisdictional statement in a complaint, as required by Federal Rule of Civil Procedure 8(a)(1), commentators have explained "that the absence of a complete allegation of jurisdiction does not even require amendment of the complaint when the district judge readily can recognize the existence of [jurisdiction]." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1214 (3d ed. 2004). Moreover, "[s]ome[ federal] courts have examined the whole record for the purpose of curing a defective averment of citizenship, and if the requisite citizenship is anywhere expressly averred in the record, or facts are therein stated which in legal intendment constitute such an allegation, jurisdiction has been found." 27 Federal Procedure, Lawyers Edition § 62:43 (Russell J. Davis et al. eds., 1996).