Robinson v. BaggettRobinson v. Baggett
OPINION
1 Alexander Earl Baggett (Husband) appeals the trial court's denial of his motion under rule 60(b) of the Utah Rules of Civil Procedure following the entry of an Amended Supplemental Decree of Divorce and the related findings of fact and conclusions of law (Amended Decree) in his divorce from Randy L. Robinson (Wife). 1 We reverse and remand.
BACKGROUND
T2 Husband and Wife were married in Utah on December 31, 1995. The couple has one child together, who is still a minor. Wife filed for divorcee on March 26, 2008. The parties stipulated, and the trial court ordered, that Husband would pay temporary support to Wife beginning on June 1, 2008, including child support, mortgage payments on the marital home, and temporary alimony of $2,909 per month (the Temporary Order). A trial was held before Judge Stephen L. Roth in June 2005, at which time the proceedings were bifurcated. Judge Roth granted the divorcee on June 29, 2005, but provided that "[alll other matters associated with this divorce, including child support, alimony, property distribution, allocation of debts, attorney[ ] fees and any other matter argued before this court at trial ... shall be reserved for final ruling by this court." The parties' marriage lasted for a total of 114 months.
T3 On January 4, 2006, Judge Roth issued a Memorandum Decision explaining his decisions regarding custody of the parties' child, child support, division of property and debt, and alimony. Judge Roth awarded Wife alimony in the net amount of $1,882 per month, stating, "That Sum is payable for a period equal to the length of the marriage," i.e., 114 months. He instructed the parties to caleu-late the amount of alimony Husband would need to pay so that, after taxes, Wife would receive $1,882 and to include that gross amount in their proposed findings. In addition, because Husband had only paid approxi
14 For the next eight months, the parties attempted unsuccessfully to agree upon the terms of the proposed order and the supporting findings of fact and conclusions of law. The parties submitted their respective positions on a number of disputed issues to the court on September 1, 2006, and argued the issues at a hearing before Judge Roth on July 11, 2007 (2007 Hearing). At the 2007 Hearing, the parties first discussed the date on which the parties' retirement accounts would be divided. Wife's attorney urged Judge Roth to take into account Husband's failure to meet his support obligations under the Temporary Order in determining the effective date for the division of marital property. Judge Roth considered Wife's concerns and stated generally that "my decision will take effect as of the date the supplemental decree was signed," 3 except that the retirement accounts would be divided as of the date of his January 4, 2006 Memorandum Decision.
15 Later in the proceedings, the parties specifically addressed the issue of alimony. The parties stipulated at the 2007 Hearing that alimony would last for 102 months, which is the length of the 114-month marriage less the year credit Husband received for making partial payments under the Temporary Order. The parties then addressed the effective date of the permanent alimony award. Specifically, Wife questioned whether there should be an order addressing the temporary alimony arrearages accumulated during the interim between the June 2005 trial and the 2007 Hearing and if so, whether they should be calculated based on the higher award in the Temporary Order or based upon the permanent support award in Judge Roth's January 4, 2006 Memorandum Decision. Wife argued that Husband should not get the benefit of the lower alimony payments awarded under the Memorandum Decision because he had not been paying his share of marital debt as ordered by that decision. Therefore, Wife suggested that the lower permanent alimony amount not begin until Husband began paying toward the marital debt. Although Judge Roth acknowledged Wife's concern, he rejected Wife's suggestions regarding the commencement of the remaining 102 months of alimony. Instead, referring to his January 4, 2006 Memorandum Decision, Judge Roth stated, "It seems to me that my ruling-that my order ought to take place as of the date of the ruling, that the-it will be the gross amount of that [$11,882 as of January." He further clarified,
And that would take-that would satisfy, it seems to me, my concerns about what's happened here, while still making implementation of my ruling, which was thought out in some length in terms of what was appropriate in terms of child support and-and alimony and put that into place. The concern I have is just continuing the temporary order because it also continues amounts of child support-and alimony, which I calculated on a much more detailed basis than is under the temporary orders....
Judge Roth's reference to the precise dollar figure of the net alimony award, $1,882, as well as the reference to his January ruling, leave little doubt that he ordered permanent alimony to run for 102 additional months,
T6 After several more months of negotiations in an attempt to memorialize Judge Roth's rulings and to resolve other issues left open at the 2007 Hearing, Wife served Husband with a copy of the proposed Amended Decree on March 5, 2008. Husband notified Wife of his intention to object but failed to do so within the time provided by the parties' correspondence. Because she had not received any formal objections to the Amended Decree, Wife submitted it to the court on April 3, 2008. By this time, Judge Robert P. Faust was assigned to serve as the trial judge on the case as the successor to Judge Roth. Seeing that no objections had been filed within the five days provided by rule 7(P(2) of the Utah Rules of Civil Procedure, Judge Faust entered the Amended Decree on April 11, 2008. One of the provisions of the Amended Decree provided that Husband was to pay $2,499 4 per month as alimony to Wife for a period of 102 months to begin on the date that the Amended Decree was entered, April 11, 2008. Because Judge Roth's ruling at the 2007 Hearing ordered the 102 months of permanent alimony to begin as of the date of the January 4, 2006 Memorandum Decision, the Amended Decree provided Wife with twenty-eight extra months of permanent alimony.
T7 On April 28, 2008, Husband filed a motion for rule 59(e) or rule 60) relief (First Rule 60(b) Motion). As an addendum to the First Rule 60(b) Motion, Husband's attorney submitted an affidavit stating that on April 4, 2008, his office received a copy of the Amended Decree and notice that it had been submitted to the court but that he had not seen it until April 28, 2008. Husband's attorney indicated that he is not certain why he did not see the letter, but also noted that he was moving offices during that time. Husband argued that he was entitled to relief under rule 59(e) of the Utah Rules of Civil Procedure based on irregularity in the proceedings, see
{8 In a minute entry dated June 27, 2008, Judge Faust denied the First Rule 60) Motion, ruling that Husband's motion was untimely under rule 59(e), see id. R. 59(e) ("A motion to alter or amend the judgment shall be served not later than 10 days after the entry of judgment."), and that his "failure to timely object to the proposed Amended Decree [wals inexcusable." Judge Faust further reasoned that Husband could not "rely on surprise or mistake because by April 4, 2008, by the latest, [Husband's attorney] was clearly informed that the proposed Amended Decree had been submitted to the Court." He then determined that there was "no rea
T9 Instead, on July 10, 2008, Husband filed a second motion asking for relief under rule 60(b) (Second Rule 60(b) Motion). In the Second Rule 60(b) Motion, Husband asserted that he was entitled to relief based upon either "fraud ..., misrepresentation, or other misconduct of an adverse party," satisfaction of the judgment, or "any other reason justifying relief from the operation of the judgment." See
110 Judge Faust held a hearing on the Second
11 The parties were again unable to resolve their differences. Approximately fifteen months later, on January 25, 2010, Husband filed a request to submit for a decision on his Second
ISSUES AND STANDARDS OF REVIEW
112 Husband first argues that we lack subject matter jurisdiction. He asserts that there is no final order in this case because at the 2008 Hearing Judge Faust either granted his Second
Y18 In the alternative, Husband argues that if we do have subject matter jurisdiction over his appeal, Judge Maughan exceeded his discretion in denying Husband's Second
ANALYSIS
I. Judge Maughan's Denial of Husband's Second
¶14 An appeal may be taken only “from ... final orders and judgments, except as otherwise provided by law.”
115 We first address Husband's assertions in his reply brief and at oral argument that the Amended Decree was not a final, appealable order; that his own rule 60(b) motions were procedurally improper because there was no final order from which to seek relief; that Judge Maughan did not properly have Husband's Second
116 Nor are we persuaded by Husband's argument that Judge Faust's comments at the 2008 hearing that some issues may need clarification-specifically the alimony commencement date and life insurance protection for Husband's alimony obligation
6
-indicate that Judge Faust determined that the Amended Decree was not a final order. Although Judge Faust stated that if he granted the Second
¶17 "[A]n order is final where the effect of the order ... was to determine substantial rights ... and to terminate fully the litigation." Foster v. Montgomery,
¶19 In response to Husband's Notice To Submit, Judge Maughan entered a signed Minute Order denying the Second
¶20 Having concluded that we have subject matter jurisdiction, we now proceed with our substantive review, which is limited to Judge Maughan's denial of Husband's See-ond
II The Trial Court Exceeded Its Discretion in Denying Husband's Second
¶21 Judge Maughan denied Husband's Second
¶22 In his Second
¶23 As a general rule, parties should allege all known grounds for relief in one motion for relief from judgment under rule 60(b). As this court explained in Amica Mutual Insurance Co. v. Schettler,
[there must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy. And justice is not served by permitting the losing party to string out his attack on the judgment over a period of months, one argument at a time, or to make the first motion a rehearsal for the real thing the next month.
Id. at 969 (internal quotation marks omitted). The Amica Mutual court concluded that the defendant's second rule 60(b) motion was barred by "'law of the case'" because the "newly discovered evidence" he asserted as the ground for relief under his second motion "was available ... at the time he filed his first 60(b) motion and with due diligence could have been included in the original motion," which was also based on newly discovered evidence. See id. We agree that generally, "[al party may not file repeated [rule 60(b) ] motions until he either offers a meritorious ground for relief or exhausts himself and the trial court in an effort to do so." See Carvey v. Indiana Nat'l Bank,
¶25 In his denial of Husband's Second
¶26 In urging us to affirm, Wife asserts that Judge Roth ordered the permanent alimony award to begin at the time the Amended Decree was entered. In support of this assertion, Wife points to language earlier in the proceedings where the parties discussed the division of retirement accounts. After the parties discussed the date for the division of the parties' retirement accounts and concerns about Husband's failure to assume responsibilities under the Memorandum Decision, Judge Roth stated generally that the "provisions" of his decision would take effect when the final decree was signed. He then identified the date of the Memorandum Decision as the effective date for the division of the parties' retirement accounts. Reflecting their understanding that Judge Roth had not yet ruled on the issues relating to alimony,
¶27 The permanent alimony commencement date of April 11, 2008, that Wife inserted into the Amended Decree awards Wife twenty-eight extra months of permanent alimony, resulting in a windfall to Wife of approximately $70,000 and an award of 130 months of permanent alimony, despite Judge Roth's award of such alimony only for the length of the 114-month marriage.
12
Furthermore, while Husband bears much of the responsibility for not filing timely objections to the proposed decree and not appealing either the Amended Decree or the denial of his First
¶28 Having decided that Husband's Second
¶29 First, the grounds listed in subsections (1) through (5) of rule 60(b) do not apply here. See Kunzler v. O'Dell,
¶30 Second, we conclude that the unusual circumstances present here justify relief. The commencement date in the Amended Decree directly and substantively conflicts with Judge Roth's oral ruling at the 2007 Hearing. By virtue of the inclusion of a commencement date that is difficult to support from a review of the record, Wife is the beneficiary of twenty-eight months of permanent alimony in excess of Judge Roth's ruling, totaling nearly $70,000. Additionally, the duration of permanent alimony as provided in the Amended Decree exceeds the length of the marriage in contradiction of Judge Roth's unambiguous ruling to the contrary. While we do not condone Husband's lack of diligence in challenging the terms of the Amended Decree, both before and after it was entered, the principles of equity that are embodied in rule 60(b) convince us that a decree so far removed from the ruling of the court should not stand.
¶32 Based on the foregoing, we conclude that Husband is entitled to relief from the Amended Decree and we therefore vacate it. In doing so, we are sensitive to the difficulties faced by the trial judges who suceessively assumed the responsibilities for this matter during the four years between Judge Roth's initial Memorandum Decision and Husband's notice to submit the Second
CONCLUSION
¶33 Because the Amended Decree was a final, appealable order from which Husband properly sought rule 60(b) relief and because Judge Faust did not grant Husband's Second
¶ 34 Reversed and remanded.
¶ 35 WE CONCUR: JAMES Z. DAVIS, Presiding Judge, and J. FREDERIC VOROS JR., Judge.
Notes
. The Decree was called an "amended" decree simply because the proceedings were bifurcated and the trial court had previously entered a divorce decree.
. However, Judge Roth also ordered that if Husband paid "the full amount of arrears within forty-five (45) days after the date of this Decision, the period of alimony payment [would] begin June 2003," essentially allowing for two years credit on Husband's permanent alimony obligation if the condition was satisfied. -It is undisputed that Husband failed to pay the arrearages within forty-five days after the Memorandum Decision.
. As further explained below, the supplemental decree Judge Roth referred to was memorialized as the Amended Decree that Judge Robert P. Faust entered on April 11, 2008. See infra 16.
. In the Amended Decree, Wife asserted that this is the gross amount she required so that she would net $1,882 per month after taxes.
. Because the Utah Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure, we may look to the federal rules for guidance. See Drew v. Lee,
. It appears that Judge Roth did not make a substantive ruling with regard to the amount of life insurance coverage Husband would need to carry to cover his alimony obligation and instead left it to the parties to reach an agreement. Although Husband identifies the life insurance issue as a basis for his argument that the Amended Decree is not final, he does not rely on the life insurance provision on appeal as support for his claim that Judge Maughan erred in denying his Second
. Although Husband complains that Judge Mau-ghan denied the Second
. Although Husband's Second
, While Wife acknowledged this language in her response to Husband's Second
. After Judge Roth's ruling on the effective date of the permanent alimony award, Husband's attorney clarified, "If Your Honor is actually saying that it's from the date of the [January 2006] order, then I think our calculation application [of post-trial arrearages] is closer to what's correct. But I believe that [Wife's attorney] and I can go through and we can identify those numbers. That's a matter of the numbers." Judge Roth affirmed his intent to modify the effective date of the permanent alimony award by responding, "Right."
. The practice of adopting aggressive interpretations of Judge Roth's ruling was not limited to Wife. Even on appeal, Husband insists that the commencement date for permanent alimony should be controlled by the Memorandum Decision, arguing that Judge Roth "made no rulings [at the 2007 Hearing] altering [his] earlier decision that alimony should begin in June 2004." Our review of the record convinces us that Judge Roth expressly adopted a January 2006 date for the commencement of permanent alimony, thereby abandoning the June 2004 date in his prior Memorandum Decision.
. As an experienced trial judge, Judge Roth was likely well aware of Utah Code section 30-3-5(8)(h), which mandates specific findings in order to award alimony for a duration longer than the length of the marriage. See
. The original divorce petition was filed before Judge Stephen Henriod.
. Permission to prepare an order reflecting a ruling from the bench should not be treated by either party as an opportunity to negotiate for a "wish list" of preferred terms. Instead, both parties should attempt to agree on an accurate recitation of the trial court's actual ruling. See Utah Standards of Professionalism and Civility 14-301(8) ("'When permitted or required by court rule or otherwise, lawyers shall draft orders that accurately and completely reflect the court's ruling."). If the parties cannot agree on the substance of the ruling after a reasonable effort, further clarification should be sought from the trial court.
.