Homer v. Homer Case

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Kathe C. Homer,
Plaintiff and Appellee,

v.

Stephen G. Homer,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000008-CA

F I L E D
December 29, 2000 2000 UT App 381

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Fourth District, Provo Department
The Honorable Ray M. Harding, Jr.

Attorneys:
Stephen G. Homer, West Jordan, Appellant Pro Se
Helen E. Christian, Salt Lake City, for Appellee -----

Before Judges Jackson, Bench, and Orme.

JACKSON, Associate Presiding Judge:

As a preliminary matter, we hold that the trial court did not abuse its discretion when it dismissed Mr. Homer's Petition to Modify. Mr. Homer's Petition to Modify did not allege "a substantial material change in circumstances not foreseeable at the time of the [parties'] divorce." Utah Code Ann. § 30-3-5(g)(i) (Supp. 2000). Thus, the trial court did not have the authority to modify the alimony award and properly granted Ms. Homer's Motion to Dismiss.

The gist of Mr. Homer's equal protection argument is this: it is unfair that he, who was divorced prior to the 1995 amendment to section 30-3-5, should have to pay lifetime alimony, while someone who was divorced after the 1995 amendment would have alimony limited to the duration of the marriage.

Although Mr. Homer cites to a host of cases addressing alleged equal protection violations, he does not identify which level of scrutiny we should apply to this case, nor does he provide the three-part analysis required by our courts. See Zissi v. State Tax Comm'n, 842 P.2d 848, 855 (Utah 1992) [stating, under more stringent Uniform Operation Clause analysis, "'we must determine whether the classification is reasonable, whether the objectives of the legislative action are legitimate, and whether there is a reasonable relationship between the classification and the legislative purpose'" (citation omitted)]; Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 890 (Utah 1988) ("[W]e need only determine whether the [statute] in question satisf[ies the Uniform Operation clause]. If so, [it] will pass federal muster."). Thus, his discussion is not adequately tied to his legal argument. For example, Mr. Homer fails to support his novel contention that a "classification," for purposes of equal protection analysis, is created by the mere enactment of a law. This classification, as described by Mr. Homer, is "those divorced under the 'old' (i.e. pre-1995 statute) and those persons divorced under the 'new' (i.e. 1995 statutory amendments) statute." Neither Mr. Homer's brief and oral argument, nor our independent research, leads us to any authority supporting his proposition that a "class" for equal protection analysis can be composed of nothing more than people whose rights were determined under the prior statutory scheme and those whose rights were determined under the amended statutory scheme.

After thoroughly considering Mr. Homer's constitutional claim, we decline to reach its merits because "'the overall analysis of the issue is so lacking as to shift the burden of research and argument to'" this court.(1)Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (citation omitted) ("Briefs must contain reasoned analysis based upon relevant legal authority.").

We decline Ms. Homer's request for attorney fees under Rule 33 of the Utah Rules of Appellate Procedure, as we cannot say Mr. Homer did not advance his argument in good faith. See Utah R. App. P. 33 (defining frivolous appeal as "one . . . not based on a good faith argument to extend, modify, or reverse existing law").

Affirmed.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

I CONCUR:
 
 
 

___________________________
Gregory K. Orme, Judge -----

I CONCUR IN THE RESULT:
 
 
 

______________________________
Russell W. Bench, Judge

1. In the last paragraph of his reply brief, Mr. Homer asserts that the parties' respective financial circumstances have indeed changed. These would be proper factual allegations to make should Mr. Homer decide to file another Petition to Modify. We note, however, that the 1995 amendment to section 30-3-5 does not constitute a substantial, material change of circumstances sufficient to support modifying a previously entered divorce decree. See Throckmorton v. Throckmorton, 767 P.2d 121, 124 (Utah Ct. App. 1988) (concluding change of law after divorce decree entered is not a substantial material change of circumstances for modification purposes).