Fife v. Kennedy

Fife v. Kennedy

IN THE UTAH COURT OF APPEALS
 

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Sherma A. Kennedy nka Sherma Fife,

Petitioner and Appellant,

v.

J. Warren Kennedy,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030824-CA
 

F I L E D
(March 3, 2005)
 

2005 UT App 96

 

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First District, Logan Department

The Honorable Clint S. Judkins

Attorneys: Christopher L. Daines, Logan, for Appellant

Peter W. Guyon, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Davis.

DAVIS, Judge:

    Sherma Fife (Petitioner) appeals the trial court's order partially vacating and amending the parties' divorce decree, as well as the trial court's order dismissing a separate civil action Petitioner filed against J. Warren Kennedy (Respondent) to partition certain parcels of property that were titled in both parties' names.

    Petitioner argues that the trial court erred by determining that Respondent's motion to amend the parties' divorce decree was governed by rule 60(b)(6) of the Utah Rules of Civil Procedure. Petitioner asserts that, instead, the trial court should have determined that Respondent's motion, which was filed nearly five years after the entry of the parties' divorce decree, was governed by either rule 60(b)(1) or rule 60(b)(3) of the Utah Rules of Civil Procedure, thereby rendering it time-barred. See Utah R. Civ. P. 60(b) (providing that motions brought under subsections (1), (2), or (3) of rule 60(b) shall be made "not more than [three] months after the judgment, order, or proceeding was entered or taken"). Petitioner also asserts that, as a result of this alleged error, the trial court dismissed and "never considered" the partition action she filed against Respondent. Petitioner asks this court to reverse the trial court's grant of Respondent's motion to amend the parties' divorce decree, reverse the trial court's dismissal of the partition action, and remand for proceedings in the partition action.

    Even if Petitioner is correct in her assertion that the trial court's treatment of Respondent's motion and dismissal of the partition action were in error, Petitioner has failed to demonstrate how these alleged errors were harmful or prejudicial.

Harmless error is defined . . . as an error that is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings. Put in other words, an error is harmful only if the likelihood of a different outcome is sufficiently high as to undermine our confidence in the verdict. On appeal, the appellant has the burden of demonstrating an error was prejudicial--that there is a reasonable likelihood that the error affected the outcome of the proceedings.

Covey v. Covey, 2003 UT App 380,¶21, 80 P.3d 553 (alteration in original) (quotations and citations omitted), cert. denied, 90 P.3d 1041 (Utah 2004).

    Petitioner has failed to demonstrate that, had the trial court treated Respondent's motion in the manner Petitioner asserts was proper and proceeded with the partition action, the trial court would have rendered a ruling in the partition action that differs from the ruling it rendered in granting Respondent's motion to amend the parties' divorce decree.(1) Because Petitioner has failed to demonstrate that the trial court's alleged error was prejudicial, her claim fails. See id.

    Affirmed.

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James Z. Davis, Judge

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WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

1. Respondent's motion to modify the parties' divorce decree and Petitioner's complaint in the partition action both centered around the same issue--resolving ownership of certain real property titled in both parties' names. In addition, in several of the trial court's orders in both cases, it recognized that although the two cases were not consolidated, it tried them together because the parties had stipulated that any evidence and testimony "would be the same and applicable" to both cases. Therefore, contrary to Petitioner's assertion that the trial court did not consider the partition action, the trial court considered both cases at the same time.

Given that the same evidence and testimony was applicable to both cases and that both cases were aimed at resolving the same issue, it is unlikely that, had the trial court treated Respondent's motion in the manner Petitioner asserts was proper, the overall outcome would have been different.