Joos v. Joos

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Piper C. Joos,
Plaintiff and Appellee,

v.

Dan Rodney Joos,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990666-CA

F I L E D
November 4, 1999
  1999 UT App 312

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Third District, Salt Lake Department
The Honorable Sandra Peuler

Attorneys:
Dan Rodney Joos, Salt Lake City, Appellant Pro Se
E.H. Fankhauser, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Dan Rodney Joos appeals from an Order Denying Respondent's Objection to Commissioner's Recommendation. The case is before us on Piper C. Joos' motion for summary disposition.

Appellee first contends the appeal should be dismissed for lack of jurisdiction. A signed minute entry can constitute a final appealable judgment only where it is both dispositive and clearly intended to serve as the final order. See Swenson Assoc. Architects v. State, 889 P.2d 415, 417 (Utah 1994). Where, as in the present case, the minute entry directs counsel to prepare an order containing the court's ruling, the minute entry cannot serve as a final appealable order. Id. The appeal was timely taken from the final order subsequently entered on July 6, 1999.

Appellee also argues that the appeal presents no substantial question and that appellant's arguments are precluded by res judicata. Appellant pursued a direct appeal from the divorce decree, which resulted in affirmance of the decree. Appellant subsequently filed motions in the district court seeking to set aside the division of private property and force appellee to renegotiate, to modify visitation and custody, and to declare statutes giving the court jurisdiction over divorce proceedings unconstitutional. Appellant also moved to have all motions considered by the district court judge rather than the commissioner. The relief sought by appellant was denied. We conclude that the judgment should be summarily affirmed.

Appellant's challenge to the distribution of private property should have been raised on direct appeal and is barred by res judicata. Similarly, appellant's efforts to modify child custody and visitation must be raised by a proper petition to modify the decree that demonstrates, as a threshold matter, that a substantial change of circumstances has occurred since the entry of the decree. See Utah Admin. Code P. R6-404; see also Jacobsen v. Jacobsen, 703 P.2d 303, 305 (Utah 1985) ("In the absence of [a showing of substantial change of circumstances], the decree shall not be modified and the matters previously litigated and incorporated therein cannot be collaterally attacked in the face of the doctrine of res judicata.").

Appellant also argues that the district court lacked "constitutional jurisdiction" over the parties' divorce proceedings. Appellant claims that the statutes pertaining to divorce, which give the courts jurisdiction to make equitable orders relating to the children, property, debts or obligations of the parties and granting continuing jurisdiction over these subjects, discriminate against married persons in favor of unmarried or cohabiting persons. Appellant's argument is without merit. "When [the marital] status is created, the rights involved are not merely private, but are also of public concern" insofar as they relate to the welfare of families. Neilson v. Neilson, 780 P.2d 1264, 1269 (Utah Ct. App. 1989). We reject appellant's contention that the divorce statutes are vague and overbroad or violate equal protection guarantees.

Accordingly, we affirm the judgment. Because appellee was awarded attorney fees and costs below and has prevailed on appeal, this case is remanded to the trial court for an award of the costs and attorney fees reasonably incurred by appellee on appeal. See Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App. 1998).
 
 
 

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Michael J. Wilkins,
Presiding Judge
 
 

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Russell W. Bench, Judge
 
 

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Gregory K. Orme, Judge