Allred v. Allred
| Decision Date | 05 June 1992 |
| Docket Number | No. 910030-CA,910030-CA |
| Citation | 835 P.2d 974 |
| Parties | Sandra J. ALLRED, Plaintiff and Appellant, v. Robert G. ALLRED, Defendant and Appellee. |
| Court | Utah Court of Appeals |
David S. Dolowitz and M. Joy Douglas, Salt Lake City, for plaintiff and appellant.
J. Franklin Allred, Salt Lake City, for defendant and appellee.
Before GARFF, JACKSON and ORME, JJ.
Appellant Sandra J. Allred (Wife) appeals a divorce decree and judgment awarding appellee Robert G. Allred (Husband) the tax exemption for the parties' minor child. Husband cross appeals claiming the trial judge erred in setting aside and amending its initial findings of fact and conclusions of law, and in computing the final property distribution. We affirm in part, reverse in part, and remand.
Wife and Husband were married September 17, 1977. The parties have one minor child. Husband has a monthly income of $6,016. Wife intends to continue her education following the divorce. Her income consists of alimony and child support payments.
The trial court issued a memorandum decision on August 9, 1990, outlining a specific division of the parties' property, awarding custody of the minor child to Wife, setting the amount of child support at $610 per month in accord with the Utah Child Support Guidelines, awarding Wife alimony in the amount of $1,000 per month, and resolving other issues not relevant to this appeal. The memorandum decision did not specify a visitation schedule, nor did it award the tax exemption for the minor child to Husband. The trial court directed Husband's attorney to prepare the findings of fact and conclusions of law (initial decree).
The initial decree awarded Husband the tax exemption for the minor child, a liberal visitation schedule, and a property division different from the one outlined in the memorandum decision. The "new" property division reflected a $14,000 net loss to Wife. On September 7, 1990, Husband's attorney sent the initial decree to the court and to Wife's attorney with a letter offering to discuss the provisions. Husband's attorney warned Wife's attorney that if he did not timely respond, he would present the initial decree to the trial court for final entry.
Wife's attorney sent a letter to the court on September 13, 1990, requesting additional time to review the initial decree and asking that the court postpone signing it. A copy of the letter was sent to Husband's attorney. Nonetheless, Husband's attorney presented the initial decree to the court for final entry on September 24, 1990. The trial court signed the initial decree on that date.
In the meantime, Wife's attorney prepared a letter accepting Husband's attorney's invitation to negotiate the items contained in the initial decree. Wife's attorney prepared the letter on September 24, 1990, and sent it to Husband's attorney on September 27, 1990, after the court had already signed the initial decree.
Wife filed a document captioned "Motion to Set Aside Entry of Judgment and Request for Extension of Time" (Motion to Set Aside), together with supporting memoranda and a request for decision, on September 27, 1990. The court granted Wife's motion by minute entry on October 19, 1990. On November 13, 1990, the court entered an "Order Setting Aside Findings of Fact, Conclusions of Law and Decree of Divorce," agreeing to hear oral argument on the property division and visitation issues, but expressly refusing to consider the tax exemption issue.
At the hearing on November 17, 1990, Husband argued that the property division in the memorandum decision contained a mathematical error and therefore did not reflect the trial court's intention. The "new" property division outlined in the initial decree, he argued, was consistent with the court's intention and should be adopted. Finding it had made no mistake in calculation, the trial court rejected Husband's argument, and affirmed its original position outlined in the memorandum decision. The trial court also modified the visitation schedule.
The trial court entered its "Order Modifying Decree of Divorce and Ruling on Plaintiff's Request to Amend the Findings of Fact, Conclusions and Decree of Divorce" (final decree) on December 12, 1990.
On January 11, 1991, within thirty days of the signing of the final decree, Wife filed a notice of appeal with this court, claiming the court erred in awarding the tax exemption to Husband.
Husband claims Wife's appeal was not timely filed, and also cross-appeals claiming the court erred (1) in setting aside the initial decree because Wife's objections were not timely filed, and (2) in not recognizing that it had made a mistake in computing the final property distribution.
We first consider whether Wife timely filed her notice of appeal so as to give this court jurisdiction. "[T]he initial inquiry of any court should always be to determine whether the requested action is within its jurisdiction." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah App.1989). We independently determine whether the appeal is proper when reviewing a jurisdictional issue. See Barlow v. Cappo, 821 P.2d 465, 466 (Utah App.1991).
Husband claims Wife did not timely file her appeal because she did not file a notice of appeal within thirty days of the court's signing of the initial decree on September 24, 1990. He further asserts that Wife's Motion to Set Aside was actually a Rule 60 motion because of its caption and because it requested relief from judgment, and therefore the motion did not toll the time to file notice of appeal. See White v. State of Utah and the Dep't of Fin. Insts., 795 P.2d 648, 649 (1990) ().
We determine the nature of a motion from the document's substance and not its caption. Gallardo v. Bolinder, 800 P.2d 816, 817 (Utah 1990) (per curiam). The trial court's implicit conclusion that Wife's motion was filed pursuant to Rule 59 is legal in nature; we thus accord it no particular deference and review for correctness. Grayson Roper Ltd. Partnership v. Finlinson, 782 P.2d 467, 470 (Utah 1989).
"[A] motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either Rules 52(b) or 59(e)." DeBry v. Fidelity Nat'l Title Ins. Co., 828 P.2d 520, 521 (Utah App.1992).
We conclude the trial court properly characterized Wife's motion as a Rule 59 motion based on its substance. A timely motion filed pursuant to Rule 59 tolls the time for appeal pending resolution of the motion. Utah R.App.P. 4(b).
Wife's motion in effect objected to several provisions of the initial decree because they did not reflect the decision made by the trial court in its memorandum decision. The court ultimately amended portions of the decree in its final order on December 12, and granted relief pursuant to Rule 59. Moreover, in making its final decree, the trial court granted Wife's "Request to Amend the Findings of Fact, Conclusions and Decree of Divorce," thus treating Wife's Motion to Set Aside as a Rule 59 motion to amend.
While the initial decree was final upon signing on September 24, 1990, the trial court granted Wife's motion on October 19, 1990, and amended the initial decree on December 12, 1990. Thus, the decree of divorce was not final until December 12, 1990. Because Wife filed her notice of appeal on January 11, 1991, within the thirty-day period, her appeal is therefore timely.
Having concluded that the court correctly characterized Wife's motion as a Rule 59 motion, we next consider whether the court properly granted relief pursuant to that Rule. As we discussed previously, the initial decree did not reflect the findings made by the court in the memorandum decision. Thus the court properly granted Wife's motion for relief pursuant to Rule 59.
Wife claims the court erroneously awarded the tax dependency exemption either as an error in law or through inadvertence. We agree.
To consider whether the court properly awarded the exemption, we rely on Motes v. Motes, 786 P.2d 232 (Utah App.1989). To permit appropriate appellate review of a trial court's application of the law, the trial court must have made adequate factual findings. Walters v. Walters, 812 P.2d 64, 67 (Utah App.1991). The "findings 'should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.' " Marchant v. Marchant, 743 P.2d 199, 202-03 (Utah App.1987) (quoting Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987)). "Indeed, it would be an abuse of discretion for a divorce court to order a custodial parent to sign the [tax- The trial court awarded the exemption for the parties' minor child to Husband in the initial decree finding that "the value of his exemption for tax purposes would be totally lost unless Defendant is entitled to claim [the child] as his exemption for State and Federal income tax purposes." The trial court, however, never considered arguments regarding that award, nor did it make sufficient findings as required by Motes. Rather, Husband's attorney independently inserted the award in the initial decree, and the trial court refused to reconsider the award following Wife's Motion to Set Aside.
exemption waiver] in the absence of appropriately supported findings to that effect." Motes, 786 P.2d at 239.
The Federal Tax Code presumes the custodial parent should receive the dependency exemption. 26 U.S.C. § 152(e) (1988). The custodial parent may waive the exemption by signing "a written declaration ... that such custodial parent will not claim such child as a dependent." 26 U.S.C. § 152(e)(2)(A). Utah courts have recognized that in some cases it may be in the best interest of the child for the custodial parent to waive the tax exemption in favor of the noncustodial parent. Motes, 786 P.2d at 239. In such cases, the...
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Case Summaries
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