Somer v. Somer, 2020 UT App 93

Divorce decree required Eric to pay Kelley $2,416/month alimony for 12 years; decree terminated alimony on Kelley’s remarriage, death, or cohabitation.
Eric stopped paying in Sept 2016 and filed a petition to modify (terminate alimony for alleged cohabitation) on May 25, 2018; he personally served Kelley on June 3, 2018 with a summons warning that failure to answer within 21 days could result in default.
Kelley sought help (tried to hire counsel, visited Legal Aid and a family law clinic, researched rules, left messages at the commissioner’s office) but did not file an answer by the June 25 deadline.
On June 28 Eric submitted default papers; clerk entered default and the court entered an order modifying the decree that day; Kelley’s near-contemporaneous motion for an extension was denied.
Kelley retained counsel and filed a Rule 60(b)(1) motion (excusable neglect) to set aside the default; a commissioner recommended denial, Kelley objected under Rule 108, and the district court overruled the objection and denied relief, finding Kelley’s neglect not excusable.
On appeal Kelley argued (1) the district court applied the wrong Rule 108 standard and (2) the court abused its discretion in finding no excusable neglect; the Court of Appeals affirmed, concluding the Rule 108 error was invited and the denial on excusable neglect was within the court’s broad discretion.

Issue	Plaintiff's Argument (Kelley)	Defendant's Argument (Eric)	Held
Did the district court apply the correct Rule 108 standard in reviewing the commissioner’s recommendation?	District court should conduct independent review of facts and law under Rule 108 (per Day v. Barnes).	District court reviewed for abuse of discretion.	Court: District court applied wrong standard but Kelley invited the error by urging an abuse-of-discretion framing; no reversal.
Did the district court abuse its discretion in denying Kelley’s Rule 60(b)(1) motion for excusable neglect?	Kelley’s pre-deadline efforts (seeking counsel, Legal Aid, clinic packet, calls, research) showed excusable neglect.	Kelley had actual notice, explicit summons warnings, prior history of tardiness, and took no timely filing action; efforts were insufficient.	Court: No abuse of discretion—district court reasonably found Kelley lacked sufficient diligence; denial affirmed.

Day v. Barnes, 427 P.3d 1272 (Utah Ct. App. 2018) (Rule 108 requires independent factual and legal review by the district court).
Jones v. Layton/Okland, 214 P.3d 859 (Utah 2009) (district court has broad discretion on Rule 60(b) excusable neglect determinations).
Sewell v. Xpress Lube, 321 P.3d 1080 (Utah 2013) (due diligence/excusable neglect standard described).
West v. Grand County, 942 P.2d 337 (Utah 1997) (articulated four-factor test for excusable neglect but not dispositive).
State v. McNeil, 365 P.3d 699 (Utah 2016) (invited error doctrine—error invited by party’s affirmative representations).
Rodriguez v. Kroger Co., 422 P.3d 815 (Utah 2018) (legal standard of review is a question of law reviewed for correctness).