Wallace v. Cook

Wallace v. Cook

IN THE UTAH COURT OF APPEALS

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Graham Wallace,

Petitioner and Appellant,

v.

Jacqueline Cook,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030696-CA
 

F I L E D
(August 26, 2004)
 

2004 UT App 287

 

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Mary C. Corporon and Jarrod H. Jennings, Salt Lake City, for Appellant

Elizabeth A. Hruby-Mills and Zachary E. Peterson, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

    Graham Wallace appeals the trial court's denial of his objections to the court commissioner's recommendations. The trial court denied the objections without holding a hearing as requested by Wallace. He asserts he was entitled to a hearing before the trial court, and it was error to deny the objections without such a hearing.

    The trial court has discretion regarding whether to hold a hearing on motions, and whether to take evidence. See Utah R. Civ. P. 43(b), Utah R. Jud. Admin. 4-501(3).(1) Where motions are based on facts not appearing on the record, the trial court "may" hear motions on affidavits presented, or "may" direct that testimony be taken. Utah R. Civ. P. 43(b). Moreover, the presumption in handling nondispositive motions is that no hearing will be granted. See Utah R. Jud. Admin. 4-501(3) (providing that a decision on a motion "shall be rendered without a hearing" unless ordered by the court or requested by the parties where the motion would dispose of any action or claim).

    Wallace's objections to the commissioner's recommendations were treated as motions under rule 4-501. See Utah R. Jud. Admin. 6-401(5) (providing domestic matters other than case resolutions "shall be reviewed in accordance with Rule 4-501").(2) Subject to rule 4-501, Wallace's objections would be determined without a hearing unless ordered by the court, or requested by a party in certain circumstances. See id. 4-501(3)(A). Parties may request hearings on motions "where the granting of a motion would dispose of the action or any claim in the action on the merits with prejudice." Id. 4-501(3)(B).

    Wallace's objections did not warrant a hearing by the trial court. The objections regarded only the recommended denial of discretionary relief, and did not address any dispositive issue in the action. The granting of his objections would not "dispose of the action or any claim in the action on the merits." Id. Furthermore, because the commissioner held a hearing on the issues, the objections were based on facts appearing in the record, and thus were beyond the scope of Utah Rule of Civil Procedure 43(b). See Utah R. Civ. P. 43(b) (providing discretion in taking evidence at hearings when a motion is "based on facts not appearing of record"). Thus, under the rules, the trial court properly denied Wallace's objections without a hearing.

    Wallace also argues that the denial of a hearing violated his due process rights and his rights to access to the courts. Wallace has shown no substantive right affected by the denial of his objections, without a hearing, before the trial court. Also, he asserts in a conclusory manner that his rights to court access under the Utah Constitution have been denied, but does not support this assertion with argument or authority. Thus, he has not demonstrated that he has been denied access, particularly given that the commissioner held a hearing on the issues.

    Wallace's objections regarded nondispositive, discretionary relief, based on facts appearing on the record, and were thus appropriately decided without a hearing before the trial court. Accordingly, we affirm.

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. Utah Rule of Judicial Administration 4-501 was repealed effective November 1, 2003. However, rule 4-501 was in effect at the time of the objections and the trial court's ruling, and controls this case.

2. Utah Rule of Judicial Administration 6-401(5) was also repealed effective November 1, 2003, but is controlling in this case.