Searle v. Searle

• Decision Date: 06 December 2001
• Docket Number: No. 990726-CA., No. 20000274-CA
• Citation: Searle v. Searle, 2001 UT App 367, 38 P.3d 307 (Utah App. 2001)
• Parties: Jayni SEARLE, Appellant, v. Boyd SEARLE and Dorothy Searle, Appellees.
• Court: Utah Court of Appeals

38 P.3d 307

2001 UT App 367

Jayni SEARLE, Appellant, v. Boyd SEARLE and Dorothy Searle, Appellees.

Nos. 20000274-CA, 990726-CA.

Court of Appeals of Utah.

December 6, 2001.

Jim C. Shirley, Salt Lake City, for Appellant.

Maria Cristina Santana, Salt Lake City, for Appellees.

Before Judges JACKSON, BENCH, and BILLINGS.

OPINION

JACKSON, Associate Presiding Judge.

¶ 1 Jayni Searle (Mother) first appeals the Utah Third District Court's (District Court) order denying her petition for writ of assistance to enforce a foreign jurisdiction's temporary custody order. In a separate appeal, Mother appeals an order setting aside the District Court's August 25, 1999 Entry of Judgment, which recognized the foreign jurisdiction's permanent custody decree under the Utah Foreign Judgment Act, Utah Code Ann. §§ 78-22a-1 to -8 (1996) (Foreign Judgment Act). "We consolidate the appeals for purposes of this opinion." Webb v. R.O.A. Gen., Inc., 804 P.2d 547, 548 (Utah Ct.App.1991). We dismiss Mother's first appeal as moot in light of our conclusion in Mother's second appeal. We vacate the District Court's Order Setting Aside Judgment of Mother's second appeal, and confirm the immediate enforceability of the August 25, 1999 Entry of Judgment.

BACKGROUND

¶ 2 Mother is a member of the Fort Peck Assiniboine and Sioux Tribes (Tribe). Mother married Boyd Carl Searle (Father) in September 1986. C.S. was born four months after Mother and Father married, but Father was not the biological father of C.S.¹ Mother and Father divorced seven years later in 1993, and were awarded joint legal custody of C.S. by the District Court. Mother was awarded physical custody of C.S., subject to Father's extended visitation rights during June, July, and August, and during the winter school break. Father died in February 1998, while C.S. was in his custody.

¶ 3 After Father died, Father's parents (Grandparents) brought C.S. into their custody and filed a petition to terminate Mother's parental rights on February 23, 1998, in the Utah Third District Juvenile Court (Juvenile Court). The Juvenile Court awarded Grandparents temporary custody of C.S. at an ex parte temporary custody hearing on March 3, 1998. Grandparents did not serve notice of the ex parte hearing on Mother or the Tribe. The Tribe made a Motion to Intervene in the child custody proceeding on March 24, 1998, which the Juvenile Court granted as required by the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901-1963 (West 2001) (ICWA).² On May 15, 1998, the Juvenile Court granted Mother's Petition to Transfer Jurisdiction to the Fort Peck Tribal Court (Tribal Court).

¶ 4 The Tribal Court entered an ex parte order on May 22, 1998, accepting exclusive jurisdiction and granting temporary custody to Mother. Grandparents did not receive any notice of the proceeding, nor were they aware of the possibility that the Tribal Court might modify the Juvenile Court's temporary custody order. After the Tribal Court entered the ex parte custody order, Mother's counsel filed a Motion for Writ of Assistance with the District Court on May 28, 1998, to enforce the Tribal Court's temporary custody order. Mother named only the paternal grandfather of C.S. as defendant in her petition for writ of assistance.³ The District Court signed the writ of assistance on June 2, 1998, but delayed issuance to allow Grandparents to seek a stay in another court. On June 3, 1998, the Juvenile Court issued a stay of its May 15, 1998 order, which had transferred jurisdiction to the Tribal Court. Mother informed the District Court that she would not execute on the writ of assistance pending a resolution of the Juvenile Court's June 3, 1998 stay.

¶ 5 The Juvenile Court held a joint conference call hearing with the Tribal Court, at which counsel for both parties and the Tribe were present. The two courts concluded that the Juvenile Court would stay its order transferring jurisdiction to the Tribal Court so a higher court could review the jurisdictional question, and agreed that the Tribal Court would stay its temporary custody order pending that review.

¶ 6 On Mother's petition, we entered an order on September 1, 1998, stating, "[t]he juvenile court transferred jurisdiction over issues concerning the minor, C.S., to the Fort Peck Tribal Court and the tribal court accepted jurisdiction over the matter." Accordingly, we concluded that "the juvenile court no longer had jurisdiction over the matter," and we vacated "any orders issued by the juvenile court after May 22, 1998."

¶ 7 On September 1, 1998, as litigation resumed in the Tribal Court, Grandparents filed a motion for voluntary dismissal of their petition to terminate Mother's parental rights. Mother filed a motion for sole custody in the Tribal Court on September 8, 1998, and stipulated to the dismissal of Grandparents' petition. On September 9, 1998, the Tribal Court dismissed Grandparents' action, but retained jurisdiction over Mother's motion for sole custody of C.S. The Tribal Court's order also continued its May 22, 1998 temporary custody order. Grandparent's received notice of Mother's action for sole custody of C.S., but submitted no pleadings to, nor made any appearances before, the Tribal Court. On October 16, 1998, the Tribal Court entered a default judgment against Grandparents awarding full custody to Mother. On November 2, 1998, pursuant to Mother's motion, the Tribal Court issued an order to show cause, directing Grandparents to appear for a hearing on November 19, 1998. Grandparents failed to appear at the hearing, and the Tribal Court held Grandparents in contempt of court. The Tribal Court also issued a bench warrant for the arrest of Grandparents and C.S., stating it would lift the warrant and stay all jail time once Grandparents agreed to return C.S. to the reservation.

¶ 8 On March 8, 1999, the District Court denied Mother's petition for writ of assistance to enforce the May 22, 1998 temporary custody order on the grounds that Mother failed to comply with the Utah Foreign Judgment Act, and because Grandparents were denied due process at the May 22, 1998 Tribal Court hearing. Mother's first appeal is from the District Court's denial of her petition for writ of assistance.

¶ 9 On June 15, 1999, Mother filed both the Tribal Court's October 16, 1998 permanent custody decree and an Affidavit in Support of Entry of Foreign Judgment with the District Court. That same day, the clerk of the District Court mailed a Notice of Judgment to Grandparents. Grandparents filed various motions with accompanying memoranda over the next month and a half. However, on August 25, 1999, because Grandparents made no argument why the foreign judgment should not be recognized, the District Court "recognize[d] and [gave] full faith and credit to the October 16, 1998 order of the Fort Peck Tribal Court."

¶ 10 Counsel for Mother picked up C.S. from school and entrusted him to Tribal law enforcement for return to his mother. However, Tribal law enforcement failed to deliver C.S. to Mother. Grandparents, who knew C.S.'s whereabouts, then filed a motion for a protective order, and later filed a motion under Rule 60(b) of the Utah Rules of Civil Procedure to set aside the District Court's August 25, 1999 Entry of Judgment.

¶ 11 The District Court granted Grandparents' motion to set aside the August 25, 1999 judgment, stating,

The Court rules that the October 16th Tribal Court Decree directly relates to and stems from an Order which another court has concluded to not be entitled to full faith and credit. Specifically, the Decree reinforces the May 22nd Order and reiterates that it "is hereby continued." The October 16th Decree is therefore flawed because it maintains custody of the minor child under an Order which was issued without giving [Grandparents their] due process right to be heard. Accordingly, the October 16th Order is similarly not entitled to full faith and credit.

Mother's second appeal is from this ruling.

ISSUES AND STANDARDS OF REVIEW

¶ 12 In Mother's first appeal, she argues that the District Court incorrectly denied her petition for writ of assistance. We will address this appeal only to conclude that, in light of our disposition of Mother's second appeal, the first is moot.

¶ 13 Mother's second appeal asserts that the District Court incorrectly granted Grandparents' motion to set aside the judgment recognizing the foreign permanent custody decree. We review a district court's decision on a Rule 60(b) motion to set aside a judgment under an abuse of discretion standard. See Lund v. Brown, 2000 UT 75, ¶¶ 9-11, 11 P.3d 277; Gillmor v. Wright, 850 P.2d 431, 434 (Utah 1993). "`An appeal of a Rule 60(b) order addresses only the propriety of the denial or grant of relief,'" and thus "'is narrow in scope.'" Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 19, 2 P.3d 451 (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 60.41[1][a] (3d ed.1999)). However, we can "reach the merits of the underlying judgment from which relief was sought," id., to determine whether the district court abused its discretion. See Lund, 11 P.3d 277, 2000 UT 75 at ¶ 9 ("A decision premised on flawed legal conclusions, for instance, constitutes an abuse of discretion.").

ANALYSIS

¶ 14 Initially, we explain why Mother's first appeal is moot. Next, we evaluate whether the District Court abused its discretion in granting Grandparents' Rule 60(b) motion.

I. Mother's First Appeal

¶ 15 Mother first appeals the District Court's denial of her petition for writ of assistance. She asked the District Court to enforce a temporary custody order rendered by the Tribal Court. When a temporary order is followed by a permanent order, the temporary order merges into the permanent order. See Birch Creek Irrigation v. Prothero, 858 P.2d 990, 994 (Utah 1993). Here, the May 22, 1998 temporary custody order was followed by a permanent custody decree on October 16, 1998. Mother appealed...