Hall v. Hall

IN THE UTAH COURT OF APPEALS
 

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Grant Jeffrey Hall,

Petitioner and Appellant,

v.

Mandy Lynn Hall,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030778-CA
 

F I L E D
(October 28, 2004)
 

2004 UT App 382

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Steven C. Russell, Salt Lake City, for Appellant

Nolan J. Olsen, Midvale, for Appellee

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Before Judges Bench, Davis, and Orme.

BENCH, Associate Presiding Judge:

Grant Jeffrey Hall (Mr. Hall) appeals the trial court's order vacating a 1995 child support order. Mr. Hall first contends that the trial court deprived him of his due process rights because it allowed argument and evidence of past misrepresentations in a proceeding in which Mr. Hall was prepared to address only the modification of the child support order. "To preserve a substantive issue for appeal, a party must first raise the issue before the trial court." Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App. 1997). At no point did Mr. Hall ever make an objection before the trial court. At best he demonstrated his lack of understanding of the proceedings, which were subsequently explained to him.

"As a general rule, we will review issues raised for the first time on appeal only if exceptional circumstances or 'plain error' exists." Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994). Neither of these exceptions apply here. Mr. Hall voluntarily presented his case pro se, was aware of the issues pleaded, and even filed a counterclaim for past-due support. The claims of Mandy Lynn Hall (Ms. Hall) seeking relief from past-due child support were in direct response to Mr. Hall's counterclaim. There is no merit to the claim that exceptional circumstances exist merely because Mr. Hall proceeded pro se. Nor did the trial court commit plain error in allowing Ms. Hall to use the evidence of what she characterizes as fraud as a defense to Mr. Hall's counterclaim.

Mr. Hall next challenges the retroactive modification of the 1995 decree. Mr. Hall interprets rule 60(b) of the Utah Rules of Civil Procedure, the language of Utah Code section 78-45-9.3(4) (2002), and relevant case law to mean that courts can never retroactively modify support orders. However, the Uniform Civil Liability for Support Act specifically provides that the trial court "shall retain jurisdiction to modify or vacate the order of support where justice requires." Utah Code Ann. § 78-45-8 (2002).

The trial court found that Mr. Hall knowingly claimed false amounts of income for himself and Ms. Hall in establishing the amount of child support owed to him under the 1995 order. The 1995 support order was based on Mr. Hall's dishonest assertions as to his own and Ms. Hall's income. To permit Mr. Hall to collect money due to him under such a support order would be a gross injustice. Thus, the trial court properly invoked its discretion to vacate the 1995 support order "where justice requires." Id.

Ms. Hall requests an award of attorney fees on appeal. "The general rule is that when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." Utah Dep't. of Soc. Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct. App. 1991). Pursuant to this rule, we award Ms. Hall the attorney fees she has reasonably incurred on appeal.

We affirm the trial court's decision. We remand to the trial court to determine the attorney fees and costs Ms. Hall reasonably incurred on appeal.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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James Z. Davis, Judge

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Gregory K. Orme, Judge