Miles v. Miles

2011 UT App 359, 269 P.3d 958, 694 Utah Adv. Rep. 43, 2011 Utah App. LEXIS 359, 2011 WL 5084688
CourtCourt of Appeals of Utah
DecidedOctober 27, 2011
DocketNo. 20090873-CA
StatusPublished
Cited by4 cases

This text of 2011 UT App 359 (Miles v. Miles) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miles v. Miles, 2011 UT App 359, 269 P.3d 958, 694 Utah Adv. Rep. 43, 2011 Utah App. LEXIS 359, 2011 WL 5084688 (Utah Ct. App. 2011).

Opinion

MEMORANDUM DECISION

ROTH, Judge:

11 Baldemar Miles (Husband) challenges the district court's denial of his rule 60(b)(4) motion to vacate the default decree of divorce on the basis that the district court did not have personal jurisdiction over him. Husband also claims that the district court abused its discretion in awarding LaRue Miles (Wife) $1000 in attorney fees when Husband's attorney failed to appear at a scheduled hearing. We affirm.

I. Motion to Set Aside the Default Decree

1 2 Wife filed for divorcee on June 24, 2008, eleven days after Husband left the marital home and moved to Florida with his girlfriend.1 Husband did not leave a forwarding address with Wife, the home mortgage company, the auto company from which he leased his vehicle, the United States Postal Service, or his parents.2 He emptied and closed the [960]*960parties' joint banking accounts and abandoned his leased vehicle at the dealership with no indication of his whereabouts. Wife unsuccessfully attempted to serve Husband with a copy of the petition for divorce and a summons at the last known address for Husband in Margate, Florida, which was the residence of Husband's girlfriend's sister. On July 81, 2008, Wife filed a motion for alternative service of process, in which she documented her efforts to locate Husband and to serve him. Wife's attorney stated in his accompanying affidavit that he had conducted a nationwide person-locator search that yielded four potential addresses-the Margate, Florida address; a second Florida address; the physical address of the parties' marital home; and the parties' post office box in Castle Dale, Utah. The district court granted the motion and allowed Wife to ef-feet service by sending the petition and summons to each of the specified addresses, which she did on August 4, 2008. On October 15, 2008, after Husband failed to respond and on Wife's motion to shorten the ninety-day waiting period, the district court entered a default decree of divorcee based on the findings of fact and conclusions of law that Wife submitted. Husband states that he first became aware of the default decree on November 17, 2008, when he received a notice at yet another Florida address, in Craw-fordville, where he had actually been living, that his pension payments were being redirected to Wife pursuant to a Qualified Domestic Relations Order, entered on November 4, 2008.

T3 On January 18, 2009, Husband filed his motion to vacate the default decree under rule 60(b)(4), arguing that he had not been served and that the district court therefore lacked personal jurisdiction.3 See generally Utah R. Civ. P. 3(b) ("The court shall have jurisdiction from the time of ... service of the summons and a copy of the complaint."). Husband contended that Wife had moved for alternative service without exercising reasonable diligence to locate him as required by rule 4 of the Utah Rules of Civil Procedure. See generally id. R. 4(d)(4)(A) (permitting a plaintiff to seek alternative service if the "whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence"). With his motion, Husband included his affidavit and copies of certain mailings, which he alleged supported his contention that Wife was aware of his address at least prior to the entry of the divoree decree. Neither Husband's motion nor his supporting memorandum, however, specifically addressed Wife's knowledge of his Crawfordville address prior to her motion for alternative service other than through general references to Wife's continued contact with his parents.

{4 Wife opposed the motion to vacate, filing her own affidavit in which she reasserted the difficulties she encountered in locating and serving Husband. She indicated that in June 2008, she had arranged for the United States Postal Service to forward Husband's mail to the Margate, Florida address-one of those on which alternative service had been authorized and the residence of Husband's girlfriend's sister-implying, without directly stating, that she might not have received the mailings on which Husband relied. Wife also attached copies of police reports that she and her daughter had made, claiming that Husband's girlfriend had made threatening calls to them on August 29, 2008, to demand that Wife stop sending Husband's mail to her sister's home. Husband did not dispute that his girlfriend made the calls. Thus, there is some suggestion in the record, however oblique, that Husband actually may have received notice of the proceedings prior to the entry of the default divorce decree.

15 Following a hearing, the motion was submitted to the district court on the memo-randa, attached affidavits and supporting documents, and the arguments of counsel. The district court denied the motion to vacate. Husband now appeals.

16 Rule 60(b)(4) of the Utah Rules of Civil Procedure permits a district court to [961]*961relieve a party from a judgment that is void. See Utah R. Civ. P. 60(b)(4). "[Wlhen a motion to vacate a judgment is based on a claim of lack of jurisdiction, the district court has no discretion: if jurisdiction is lacking, the judgment cannot stand without denying due process to the one against whom it runs." Department of Soc. Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989). "Therefore, the propriety of the jurisdictional determination, and hence the decision not to vacate, becomes a question of law upon which we do not defer to the district court." Id. We review the factual findings underlying the jurisdictional issue for clear error. See Cooke v. Cooke, 2001 UT App 110, ¶ 7, 22 P.3d 1249. When a court of general jurisdiction enters a judgment, however, we presume the existence of jurisdiction, and the burden of demonstrating its absence lies with the party attacking it. See Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 9, 100 P.3d 1211.

17 Husband's appeal of the denial of the motion to vacate, and the corresponding issue of whether the district court had jurisdiction, requires us to consider whether the grant of alternative service was appropriate in the first instance. Husband's appeal also raises the issue of whether Wife had any duty to inform Husband of the proceedings if she learned of his actual address after service but prior to the entry of the default divorce decree. Rule 4 of the Utah Rules of Civil Procedure allows alternative service when the "whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence." Utah R. Civ. P. 4(d)(4)(A). Reasonable diligence is that " 'diligence which is appropriate to accomplish the end sought and which is reasonably calculated to do so. If the end sought is the address of an out-of-state defendant it encompasses those steps most likely, under the cireumstances, to accomplish that result. " Jackson Constr. Co., 2004 UT 89, ¶ 19, 100 P.3d 1211 (quoting Parker v. Ross, 117 Utah 417, 217 P.2d 373, 379 (1950) (Wolfe, J., concurring)). If reasonable diligence does not yield the address for personal service, a plaintiff may move for alternative service only if the motion is accompanied by an affidavit describing the specific efforts made to locate the other party and the court concludes that those efforts were both reasonable and diligent. See Bonneville Billing v. Whatley, 949 P.2d 768, 773 (Utah Ct.App.1997).

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Cite This Page — Counsel Stack

Bluebook (online)
2011 UT App 359, 269 P.3d 958, 694 Utah Adv. Rep. 43, 2011 Utah App. LEXIS 359, 2011 WL 5084688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miles-v-miles-utahctapp-2011.