Elsbury v. Elsbury

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Elsbury v. Elsbury, Case No. 20001120-CA, Filed July 6, 2001 IN THE UTAH COURT OF APPEALS


Cory E. Elsbury,
Petitioner and Appellant,


April R. Elsbury,
Respondent and Appellee.

(Not For Official Publication)

Case No. 20001120-CA

July 6, 2001 2001 UT App 217 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Monica Z. Kelley, Salt Lake City, for Appellant
Richard S. Nemelka and Dennis L. Mangrum, Salt Lake City, for Appellee


Before Judges Greenwood, Jackson, and Davis.


Mr. Elsbury appeals the trial court's September 11, 2000 order in which it refused to set aside his default divorce decree. He claims that because no notice to appear or appoint counsel was sent to him in accordance with Rule 4-506 of the Code of Judicial Administration, the trial court should not have entered the default decree. According to subsection (4): If an attorney withdraws, dies, is suspended from the practice of law, is disbarred, or is removed from the case by the court, opposing counsel shall serve a Notice to Appear or Appoint Counsel on the unrepresented client. The Notice to Appear or Appoint Counsel must inform the unrepresented client of the responsibility to appear in a court or appoint counsel. A copy of the Notice to Appear or Appoint Counsel must be filed with the court. No further proceedings shall be held in the case until 20 days have elapsed from filing of the Notice to Appear or Appoint Counsel unless the client of the withdrawing attorney waives the time requirement or unless otherwise ordered by the court. Utah Code Jud. Admin. R4-506(4).

Although Rule 4-506 has been interpreted strictly to require notice and a twenty-day waiting period,(1) we conclude that it was unnecessary to give Mr. Elsbury notice to appear or appoint counsel because he already had notice and had appeared. On March 23, 2000, a "substitution of counsel" was filed in the trial court by which Mr. Elsbury substituted himself for his counsel--"[Cory Elsbury] hereby substitutes himself as counsel replacing Marsha M. Lang, effective the date of her withdrawal of Counsel." After that, the court sent notice of the pre-trial hearing to Mr. Elsbury as his own counsel, not to his former counsel.

At the April 3, 2001 contempt hearing, the issue of Ms. Lang's withdrawal was also discussed and it was agreed that Ms. Lang would represent Mr. Elsbury through the hearing and then be allowed to withdraw. The order from the April 3 hearing states that Mr. Elsbury's attorney "is hereby entitled to withdraw as attorney in the above-entitled matter, and [Mr. Elsbury] shall forthwith represent himself in the above-entitled matter." At the end of the contempt hearing, the trial court suggested that Ms. Elsbury's counsel give Mr. Elsbury notice to appear or appoint counsel, but this was unnecessary because Mr. Elsbury was already on notice of his duty to appear or appoint counsel and had already appeared as counsel for himself.

Based on Mr. Elsbury's appearance, the April 3, 2000 notice of pre-trial hearing was sent directly to Mr. Elsbury at his correct address. Mr. Elsbury did not attend the pre-trial hearing, and the court noted that "he has effectively . . . substituted himself as his own attorney."

Because Mr. Elsbury appeared on March 23, 2000, it was not necessary for Ms. Elsbury's counsel to give him notice or for the proceedings to be halted.

The trial court's September 11, 2000 order is affirmed. Consistent with this decision, Mr. Elsbury's pending motions are denied.

Pamela T. Greenwood,
Presiding Judge

Norman H. Jackson,
Associate Presiding Judge

James Z. Davis, Judge

1. See e.g., Loporto v. Hoegemann, 1999 UT App 175,¶¶7-13, 982 P.2d 586 (stating Rule 4-506 compels opposing counsel to file required notice and requires trial court to wait twenty days before holding proceedings, thus trial court erred by striking wife's pleadings and placing her in default after her counsel's motion to withdraw).