Castleton v. Castleton

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Lon Dee Castleton,
Plaintiff and Appellant,

v.

Marilyn Irene Castleton (Castellano),
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981287-CA

F I L E D
December 17, 1998
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Second District, Farmington Department
The Honorable Rodney S. Page

Attorneys:
Kathleen McConkie, Salt Lake City, for Appellant
J. Val Roberts, Centerville, for Appellee

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Mr. Castleton waited too long to bring his motion to set aside the qualified domestic relations order. The order was entered on October 23, 1992, and he did not move to set it aside until February 11, 1997, four and a half years later. Though Mr. Castleton does not specify the rule upon which he relies for his motion, Utah R. Civ. P. 60(b) is generally the rule employed when attempting to set aside orders. Subsection (6), the only subsection upon which Mr. Castleton could rely which does not have a three month limitation, requires that the motion be brought within a "reasonable time." Under the circumstances of this case, four and a half years cannot be considered a "reasonable time." See e.g., Maertz v. Maertz, 827 P.2d 259 (Utah Ct. App. 1992) (plaintiff's action, filed three and a half years after the adoption order, was not brought within a "reasonable time" under subdivision (b)); cf., Workman v. Nagle Construction Inc., 802 P.2d 749 (Utah 1990) (a one month delay in bringing the 60(b) motion was considered reasonable given the party's ignorance about the entry of the judgment). The evidence suggests that Mr. Castleton's attorney received a copy of the proposed qualified domestic relations order and Mr. Castleton did not file an objection to the order. Even if Mr. Castleton did not actually see the order, his attorney is his agent and Mr. Castleton is therefor charged with notice of it. See Von Hake v. Thomas, 858 P.2d 193, 194-95 n.3 (Utah Ct. App. 1993) (citations omitted) (stating "the simple proposition that an attorney is the agent of the client and knowledge of any material fact possessed by the attorney is imputed to the client"); Deschamps v. Pulley, 784 P.2d 471, 474-75 n.2 (Utah Ct. App. 1989) (noting that the principles of agency have been applied to the attorney-client relationship and concluding that the attorney's knowledge about the filing of a notice was imputed to the client).

Moreover, subsection (6) is only to be invoked "very cautiously and sparingly" and "only in unusual and exceptional instances." Lincoln Benefit Life v. D.T. Southern Properties, 838 P.2d 672, 674 (Utah Ct. App. 1992) (citations omitted). This is not such a case.

Accordingly, we affirm the trial court's judgment.
 
 

______________________________
Michael J. Wilkins,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge