Nelson v. Sweazey

Nelson v. Sweazey

IN THE UTAH COURT OF APPEALS
 

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Charise Nelson,

Petitioner and Appellee,

v.

Melvin Dale Sweazey,

Respondent and Appellant.

______________________________

State of Utah, Office of Recovery Services,

Intervenor.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041064-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 126

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Melvin Dale Sweazey, West Valley City, Appellant
Pro Se

Charise Nelson, Salt Lake City, Appellee Pro Se

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Melvin Dale Sweazey appeals the denial of his motion to set aside a judgment filed pursuant to rule 60(b) of the Utah Rules of Civil Procedure. This case is before the court on a sua sponte motion for summary disposition.

    The parties stipulated to entry of a judgment of paternity in July of 2003, with all remaining issues certified for trial. By a notice of bench trial dated May 19, 2004, the district court scheduled the trial for July 8, 2004. This notice was sent to the same address used by the court on previous notices and orders and by Sweazey on his own filings. Sweazey failed to appear for trial. The district court imputed income at the minimum wage, set child support at $123.00 per month, assessed an arrearage of $11,484.00, and awarded attorney fees of $500.00 to Appellee
Charise Nelson. The court entered its Order of Paternity, Child
Custody, Parent-Time, and Child Support and Judgment on July 28, 2004.

    Sweazey moved to set aside the judgment, claiming that he did not receive the notice of the bench trial setting, is unemployed and disabled, and should not have been assessed the amount of child support. The district court denied the motion to set aside the judgment, concluding that Sweazey "had been provided notice of the July 8, 2004, hearing date as of this Court's Notice of Bench Trial, dated May 19, 2004." The court found that the notice was sent to "the address listed for Mr. Sweazey on his pleadings" and that he had offered "no reason why the mail directed to him would have not been received." Sweazey filed a timely appeal from the order.

    "The district court judge is vested with considerable discretion under rule 60(b) in granting or denying a motion to set aside a judgment." Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986). "[B]efore we will interfere with the trial court's exercise of discretion, abuse of that discretion must be clearly shown." Id. Finally, "[t]hat some basis may exist to set aside the default does not require the conclusion that the court abused its discretion in refusing to do so when facts and circumstances support the refusal." Id.

    Sweazey moved to set aside the judgment under rule 60(b)(6), which allows a motion to set aside judgment for any other reason justifying relief. In this court, Sweazey suggests for the first time that the judgment should be set aside under rule 60(a) of the Utah Rules of Civil Procedure. This claim was never raised in the district court, and it is not clear what "clerical error" he claims occurred. He may be suggesting that the district court erred by failing to send the notice of trial by certified mail to confirm his receipt. The claim is without merit, and it will not be considered for the first time on appeal.

    The district court did not abuse its discretion in denying the motion to set aside the judgment under the facts and circumstances of this case. Notice of the July 8, 2004 bench trial setting was sent to the same address used by Sweazey on his pleadings. Sweazey confirmed in his motion that he had received prior orders and notices at that same address. He belatedly claims that he can obtain proof from the post office that the notice "may not" have been delivered. However, any such evidence must have been submitted to the district court for its consideration, and we do not consider it for the first time on appeal. See Ong Int'l Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 (Utah 1993) (stating that failure to raise issue in trial court precludes its consideration on appeal).

    Given the deferential standard of review for the denial of a motion to set aside the judgment, and the evidence in the record demonstrating that the notice was mailed to the same address used by Sweazey on his pleadings and at which he had previously received notices, orders, and pleadings, we affirm the denial of the motion to set aside the judgment.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge