Owens v. Young

Owens v. Young

IN THE UTAH COURT OF APPEALS

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Robert J. Owens,

Petitioner and Appellee,

v.

Cindy Lou Young,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021065-CA
 

F I L E D
(June 4, 2004)
 

2003 UT App 180

 

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Delano S. Findlay, Salt Lake City, for Appellant

Kara L. Barton and Diana Obray, Salt Lake City, for Appellee

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Before Judges Bench, Jackson, and Orme.

BENCH, Associate Presiding Judge:

Regardless of whether the counter-petition for increased child support abated with the death of Robert J. Owens (Father), Cindy Lou Young (Mother) failed to file a timely motion for substitution, pursuant to Utah Rule of Civil Procedure 25(a)(1).(1)

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. . . . Unless the motion for substitution is made not later than ninety days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

Utah R. Civ. P. 25(a)(1). Mother claims that "[t]he matter could not have proceeded on its merits without the appointment of the personal representative." However, "there is no requirement in our rule 25 that the suggestion of death identify a person who may be substituted for the decedent." Stoddard v. Smith, 2001 UT 47,¶17, 27 P.3d 546. Mother could have "simply file[d] a motion seeking to substitute the 'Personal Representative of the Estate of the Decedent' or 'John/Jane Doe.'" Id. at ¶19.

Mother also seems to argue that her failure to file a timely motion for substitution constituted excusable neglect because the litigation would not have been expedited had she complied with rule 25. Simply because a motion for substitution may not expedite the case does not mean that a motion could not have been made within the ninety-day period established by rule 25. "Under rule 6 of the Utah Rules of Civil Procedure, the district court has the discretion to grant a motion to enlarge time after the time for doing the act has expired, 'where the failure to act was the result of excusable neglect.'" Stoddard, 2001 UT 47 at ¶22 (quoting Utah R. Civ. P. 6(b)(2)). Mother points to four factors in determining whether excusable neglect exists: "(1) whether [the moving party] acted in good faith; (2) the danger of prejudice to the non-moving party; (3) the reason for [the] delay; (4) the length of the delay and its potential impact on judicial proceedings." Id. at ¶24.

"[A]bsent an abuse of discretion, we will affirm the district court's order denying [Mother's] motion to extend the time for filing [her] motion for substitution." Id. at ¶22. Mother claims that the trial court abused its discretion by failing to make findings of fact with regard to the issue of excusable neglect. While Mother admits that she "did not file a motion styled as an enlargement or extension of time," she contends her motion for substitution necessarily implied a request for an enlargement of time. Our review of the record indicates that in Mother's response to Father's estate's motion to dismiss, Mother mentioned rule 6(b); however, Mother failed to argue the four excusable neglect factors specified in Stoddard. See 2001 UT 47 at ¶24. Further, rule 6(b)(2) does not require that the trial court grant an enlargement of time for excusable neglect. Rather, the rule provides that a court "may at any time in its discretion" grant an enlargement of time in cases of excusable neglect. Utah R. Civ. P. 6(b) (emphasis added). We are not convinced that the trial court exceeded its discretion when it denied Mother's untimely motion to substitute.

We therefore affirm the dismissal of Mother's counter-petition for increased child support.(2) The estate asserts that it is entitled to attorney fees on appeal under rule 33 of the Utah Rules of Appellate Procedure. We deny the request for attorney fees, but costs are awarded pursuant to rule 34.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

______________________________

Norman H. Jackson, Judge

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Gregory K. Orme, Judge

1. Our decision does not address Mother's right to enforce collection of the child support that had already been ordered. Father's estate conceded that "[Mother] is welcome to enforce her rights under the terms of the Decree."

2. In her reply brief, Mother claims the estate improperly included a document in an addendum to its brief. Mother requests that the addendum be stricken because it is not part of the record below. The addendum is stricken, as requested. The contents of it have not been considered in the rendering of this decision.