Somer v. Somer

Decision Date11 June 2020
Docket NumberNo. 20190293-CA,20190293-CA
Citation467 P.3d 924
Parties Kelley Anne SOMER, Appellant, v. Eric John SOMER, Appellee.
CourtUtah Court of Appeals

Carolyn Perkins, Attorney for Appellant

Brady T. Gibbs, Attorney for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.



¶1 Kelley Anne Somer failed to timely respond to a petition to modify that had been personally served upon her. The district court entered her default and granted the petition, terminating the alimony obligation established in the divorce decree. Kelley then moved to set aside the order on the ground of excusable neglect. A commissioner recommended that the motion to set aside be denied, and Kelley objected. The district court overruled Kelley's objection and entered an order denying her motion. Kelley appeals, claiming that the district court applied the wrong standard in ruling on the objection and exceeded its discretion in denying the motion to set aside. Although we agree that the district court applied the incorrect legal standard as to Kelley's objection, we conclude that Kelley invited the error. We further conclude that the district court did not exceed its discretion in refusing to set aside the order modifying the decree. We therefore affirm.1


¶2 Kelley and Eric married in the summer of 1990. In the beginning of 2013, Kelley filed for divorce, alleging irreconcilable differences. A little more than two years later, after significant litigation, the district court entered a divorce decree. In the decree, Eric was ordered to make alimony payments of $2,416 per month for twelve years. The divorce decree added various standard conditions, including that the alimony obligation would terminate upon "the death of either party, the remarriage of [Kelley,] or the cohabitation of [Kelley]."

¶3 In September 2016, Eric stopped paying alimony and, on May 25, 2018, brought a petition to modify the divorce decree. In his petition, Eric's sole request was a cessation of his alimony obligation. Eric alleged that Kelley had been cohabiting with another man since early 2016. On that basis, Eric sought termination of his alimony obligation prospectively in full and retroactively to the date on which the cohabiting purportedly commenced.

¶4 On June 3, 2018, Eric effected personal service of his petition on Kelley. The summons expressly stated, "[Y]ou must file your written, signed answer with the clerk of the court" within twenty-one days, and it included a URL link to a blank answer form on the court's website. It also identified a court website for legal assistance and warned that failure to file an answer in the allotted time could lead to "judgment by default ... for the relief demanded in the [p]etition."

¶5 After receiving service, Kelley pursued several courses of action. She first sought to retain one of her former attorneys, but the attorney was no longer taking clients. Kelley then went to Legal Aid Society at the Matheson Courthouse. She also met with an attorney at the West Jordan Family Law Clinic and received an answer guide packet. On the Friday before her answer was due, Kelley called the commissioner's chambers but claims she did not receive a response. So, she went to the courthouse and left a note requesting assistance. While at the courthouse, Kelley accessed the law library and made copies of excerpts of the Utah Rules of Civil Procedure. Finally, on the day her answer was due, which was Monday, June 25, 2018,2 Kelley claims she called the commissioner's chambers again, leaving a voice message. But she did not file her answer on that day.

¶6 On the following Wednesday, June 28, 2018, Eric submitted default documents to the court. The court clerk entered the default, and the district court entered default judgment when it signed findings of fact, conclusions of law, and an order modifying the decree. Later that same day, Kelley filed a motion for an extension to answer, which the court denied. The court noted that the motion was several days late, that Kelley had received personal service of the summons, and that the default certificate had been entered before the request for an extension of time was filed.

¶7 Kelley thereafter retained counsel and, on July 25, 2018, filed a motion to set aside the default judgment for excusable neglect under rule 60(b)(1) of the Utah Rules of Civil Procedure. She included a proposed answer as an exhibit to her motion. In her proposed answer, she denied cohabiting with the other man. The commissioner recommended the motion be denied, concluding that Kelley's neglect was not excusable. Kelley made a rule 108 objection to the commissioner's recommended ruling.3

¶8 The objection was fully briefed and came before the district court for hearing. The court reviewed the commissioner's recommendation, ultimately overruled Kelley's objection, and denied the motion to set aside the order modifying the decree. On the record, the court indicated that it was reviewing the commissioner's recommendation under an abuse of discretion standard. In an order memorializing its findings and conclusions, the court indicated that it was "unable to find any error on the [c]ommissioner's part." Further, the court concluded that Kelley had failed to exercise sufficient diligence to justify excusing her delay. It found that Kelley's first attempt to do anything proactive in this case was eight days before the answer was due and explained that her actions "were too little, too late."

¶9 Kelley appeals.


¶10 Kelley contends that the district court erred in denying her motion for relief from default judgment under rule 60(b)(1) of the Utah Rules of Civil Procedure. In the context of a motion to set aside a default judgment, the movant must show that "(1) the motion is timely;[4 ] (2) there is a basis for granting relief under one of the subsections of 60(b); and (3) the movant has alleged a meritorious defense." E.g. , Asset Acceptance LLC v. Stocks , 2016 UT App 84, ¶ 13, 376 P.3d 322 (cleaned up).

¶11 On appeal, Kelley asserts two main contentions: (I) the district court applied the incorrect legal standards in reviewing the commissioner's recommended ruling and (II) the district court abused its discretion in denying her rule 60(b) motion because her actions constituted excusable neglect.5 We review whether the district court applied the correct legal standard for correctness. Rodriguez v. Kroger Co. , 2018 UT 25, ¶ 11, 422 P.3d 815 (noting that although a district court's decision is reviewed under an abuse of discretion standard, "whether the district court applied the appropriate standard ... presents a legal question that we review for correctness"). "We review a district court's denial of a rule 60(b) motion for relief from judgment for an abuse of discretion." Jones v. Layton/Okland , 2009 UT 39, ¶ 10, 214 P.3d 859.

I. Rule 108 Legal Standard

¶12 Kelley contends that the district court applied the incorrect legal standard in its rule 108 review of the commissioner's conclusions. We agree. In Day v. Barnes , 2018 UT App 143, 427 P.3d 1272, we explained that rule 108 of the Utah Rules of Civil Procedure "does not provide for an appeal-like review of a commissioner's decision, but instead requires ‘independent findings of fact and conclusions of law based on the evidence.’ " Id. ¶ 16 (quoting Utah R. Civ. P. 108(f) ). We gave several reasons for our conclusion, most notably the plain language of rule 108 and the logic behind the district court's independent review—that is, the commissioner's ruling ultimately becomes the district court's order, and thus "[i]t would make little sense that the district court would be limited in reviewing what is essentially its own order." Id. ¶ 18.

¶13 The district court, however, engaged in an abuse of discretion review of the commissioner's recommendation. The court stated that it had "to look at the discretion that the commissioner has and make a determination as to whether or not there was an abuse of that discretion ...." We reiterate that not conducting an independent assessment of the facts and legal issues contravenes the plain language of rule 108 and our holding in Day . See id. ¶ 16 ("[T]he rule is explicit that the district court's review is independent on both the evidence and the law.").

¶14 However, the invited error doctrine constrains us from reversing on this basis. "Under the doctrine of invited error, an error is invited when counsel encourages the [district] court to make an erroneous ruling." State v. McNeil , 2016 UT 3, ¶ 17, 365 P.3d 699. To invite error, a "party must manifest some sort of affirmative representation to the [district] court that the court is proceeding appropriately." State v. Carrick , 2020 UT App 18, ¶ 34, 458 P.3d 1167 (cleaned up). "Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court" does not consider the party's objection to that action on appeal. State v. Moa , 2012 UT 28, ¶ 27, 282 P.3d 985 ; see also ConocoPhillips Co. v. Utah Dep't of Transp. , 2017 UT App 68, ¶ 20, 397 P.3d 772.

¶15 As Eric asserts, Kelley invited the court's error by stating, "It's my perspective and my belief at this point that the court's decision ... is whether or not the commissioner abused [its] discretion with regard to the excusable neglect component to the motion to set aside." Were it not for such a statement, we would "vacate the district court's order and remand with instruction that the district court make independent findings and conclusions without imposing an erroneous" legal standard. See Day , 2018 UT App 143, ¶ 20, 427 P.3d 1272. But Kelley's affirmative representation served to encourage the court to proceed along an erroneous path, and therefore prevents vacatur on this basis.

II. Excusable Neglect

¶16 Kelley also contends that the district court abused...

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3 cases
  • Turley v. Childs
    • United States
    • Utah Court of Appeals
    • 8 Julio 2022
    ...excusable neglect where a party made a "conscious choice" not to file a timely pleading. See Somer v. Somer , 2020 UT App 93, ¶ 23, 467 P.3d 924. ¶23 Thus, although two of the four factors did not cut sharply in favor of either party, the other two weighed heavily in favor of denying the Ch......
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    • United States
    • Utah Court of Appeals
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  • Young v. Hagel
    • United States
    • Utah Court of Appeals
    • 25 Junio 2020
    ...are sufficient." Menzies , 2006 UT 81, ¶ 108, 150 P.3d 480 (quotation simplified); see also Somer v. Somer , 2020 UT App 93, ¶ 11 n.5, 467 P.3d 924 (citing cases, and stating that "proof beyond allegations stating a claim or defense is unnecessary").¶22 Here, Hagel proffers potentially meri......

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