Holmes v. Holmes, Jr.

Heather S. Holmes,
Petitioner and Appellee,

v.

Robert L. Holmes, Jr.,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981382-CA

F I L E D
June 17, 1999
  1999 UT App 194 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
Sharon L. Preston, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Billings, and Orme.

BILLINGS, Judge:

Robert L. Holmes, Jr. (Appellant) appeals the trial court's denial of his motion to vacate a default judgment under Rule 60(b). In order for defendant to be relieved from the default judgment, he must not only show that the judgment was entered against him through [one of the reasons articulated in Rule 60(b), Utah Rules of Civil Procedure], but he must also show that his motion to set aside the judgment was timely, and that [his proposed answer contains] a meritorious defense to the action. Erickson v. Schenkers Int'l Forwarders, Inc., 882 P.2d 1147, 1148 (Utah 1994) (citations omitted) (emphasis added).

In reviewing the record, we conclude that Appellant has failed to meet either part of the Erickson standard. He never clearly articulates which of the grounds set forth in Rule 60(b) he alleges as the basis for his Motion to Set Aside Default Judgment. He makes much of the fact that he filed an answer on the same day as the default judgment was entered based upon his earlier signed consent to the entry of a default judgment. However, he makes no legal argument as to why this should change the result under Rule 60(b). Further, he seems to concede that his default was properly entered.

Moreover, Appellant's proposed answer fails the second part of the Erickson standard as well. Appellant fails to articulate why the custody and visitation order he now attacks are not in the child's best interest. His allegations of change of circumstances should be brought as a petition to modify the decree, not as a Rule 60(b) Motion.

In sum, we conclude the trial court did not abuse its discretion in denying Appellant's Motion to set aside default judgment. See Utah Dept. of Transp. v. Osguthorpe, 892 P.2d 4, 8 (Utah 1995) (quoting Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986)) (citations omitted). Additionally, as prevailing party on appeal, Appellee seeks attorney fees pursuant to section 78-27-56 of the Utah Code. See Utah Code Ann. § 78-27-56 (1996). We decline to award attorney fees on appeal, as we conclude that Appellant's action was not without merit and was asserted in good faith. Affirmed.
 
 

______________________________
Judith M. Billings, Judge

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WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge