A.T.I.G. v. L.R.

• Decision Date: 11 December 2012
• Docket Number: No. 20100288.,20100288.
• Citation: 723 Utah Adv. Rep. 56,293 P.3d 276
• Parties: In the matter of the GUARDIANSHIP/conservatorship OF A.T.I.G., a minor child T.D.G., Appellant, v. L.R. and G.R., Appellees.
• Court: Utah Supreme Court

293 P.3d 276

723 Utah Adv. Rep. 56

In the matter of the GUARDIANSHIP/conservatorship OF A.T.I.G., a minor childT.D.G., Appellant,

v.L.R. and G.R., Appellees.

No. 20100288.

Supreme Court of Utah.

Dec. 11, 2012.

Danny Quintana, Benjamin B. Grindstaff, Salt Lake City, for appellant.

Judith D. Wolferts, Thomas R. Grisley, Salt Lake City, for appellees.

Martha Pierce, Salt Lake City, for Office of the Guardian Ad Litem.

Chief Justice DURRANT, Opinion of the Court:

INTRODUCTION

¶ 1 This case involves the testamentary appointment of guardianship and conservatorship of a minor (Child). Although he never formally intervened in the case below, Child's biological father, Tetlo “Danny” Goings, challenges the appointment of Child's maternal grandparents (Grandparents) as Child's guardians. On appeal, Mr. Goings argues that (a) the district court erred in its interpretation of the term “parent” and accordingly, the guardianship petition was invalid on its face; (b) the guardianship petition was fraudulent; (c) even if they were entitled to guardianship, Grandparents were not entitled to custody of Child; and (d) the court of appeals improperly awarded attorney fees to Grandparents. Grandparents argue that Mr. Goings lacks standing to bring this appeal because he never formally intervened in the case below.

¶ 2 We conclude that Mr. Goings received statutory intervenor status when he filed his objection to the Guardianship Appointment. Accordingly, he has standing to bring his appeal even though he did not formally intervene in this case. But we also conclude that Mr. Goings failed to preserve any of the issues he raises on appeal and that none of them warrant reversal under our plain error review. Finally, we do not consider whether the court of appeals properly sanctioned Mr. Goings's counsel because we lack jurisdiction to consider this issue. Accordingly, we affirm the district court's denial of Mr. Goings's motion to vacate the appointment of Grandparents as Child's guardians.

BACKGROUND

¶ 3 Child was born in 2005. Although Child's mother (Mother) was never married to Mr. Goings, Child was named after Mr. Goings's brother and was given his family name. But Mr. Goings was not listed as the father on Child's birth certificate, and he did not sign a voluntary declaration of paternity form at Child's birth.¹

¶ 4 Grandparents and Mr. Goings dispute the level at which Mr. Goings was involved in Child's life. Specifically, Grandparents allege that Mr. Goings was not present at Child's birth, that he never visited Mother and Child at the hospital when Child was born, that he paid no birth expenses, and that he refused to acknowledge Child as his own. Further, they allege that Mr. Goings “physically and emotionally abused” Mother, that Mother was afraid of him, and that “[h]e threatened her into never taking any paternity action against him and told her that if she did, he ‘would find ways to have the child taken from her.’ ” They admit that Mother and Child lived with Mr. Goings for a short time in 2006, but they claim that, during this time, Mother paid rent to Mr. Goings and that Mr. Goings's girlfriend also lived in the home. They also allege that Mr. Goings has never paid child support. They claim that Child lived with Mother and her fiancé in an apartment for most of 2007.

¶ 5 On the other hand, Mr. Goings claims that he was “highly involved” in Child's life. He states that Mother and Child lived in his home for about six months, and that after they moved out, he “remained a part” of Child's life, “saw him on a regular basis,” and watched Child two or three nights each week while Mother worked. Mr. Goings also states that he “helped financially support [Child] by buying food, groceries, [and] diapers.”

¶ 6 In April of 2008, Mother was diagnosed with terminal lung cancer. Upon learning of her diagnosis, she, her fiancé, and Child moved out of the apartment they shared and moved in with Grandparents. And in anticipation of her death, Mother prepared a testamentary appointment of guardianship and conservatorship of Child in favor of Grandparents. Her testamentary appointment provided as follows:

I, [Mother] ... being of sound mind and having the ability to make informed decisionsand choices, desire to make my wishes and directives known with regard to the Permanent Legal Custody and Guardianship of my natural minor son. It is my understanding that I have an untreatable cancer and my death is eminent.

It is my directive that Permanent Legal[ ] Custody and Guardianship of my natural minor son, [Child,] born August 20, 2005 be given to [Grandparents].

The natural father of my son, Danny Goings[,] has had no involvement with my son since birth. He is not an appropriate and fit parent to raise my natural minor son [Child].

Mr. Goings was not notified of Mother's testamentary appointment.

¶ 7 Mother died on June 19, 2008, and Grandparents took Child home with them after Mother's funeral. The next week, Grandparents filed a petition for appointment of guardianship (Guardianship Petition or Petition) to confirm and accept Mother's testamentary appointment of them as guardians and conservators of Child (Guardianship Action). On July 2, 2008, the district court confirmed their appointment (Guardianship Appointment). Later the same day, unaware of the Guardianship Action, Mr. Goings filed a separate action, before a different judge, to establish his paternity of Child in the district court (Paternity Action).²

¶ 8 On July 7, 2008, Mr. Goings learned that Grandparents had been appointed as Child's guardians, and on July 8, he filed a motion to vacate the Guardianship Appointment. In his supporting memorandum, he argued that the Guardianship Appointment should be vacated because he had not received notice of the Guardianship Petition as required under section 75–5–207 of the Utah Code (Court Appointment Statute). As part of his notice argument under the Court Appointment Statute, he asserted that Grandparents obtained the confirmation of their appointment based on “false and misleading information.” But while the Court Appointment Statute governs guardianship appointments made by a court, section 75–5–202.5 of the Utah Code (Testamentary Appointment Statute) governs guardianship appointments made by a parent.³ Mr. Goings did not make any arguments related to the Testamentary Appointment Statute, under which Mother appointed Grandparents as Child's guardians.

¶ 9 In the Guardianship Action, the court summarily denied Mr. Goings's motion to vacate in an order dated January 5, 2009. Grandparents then filed a proposed order for the court to sign. But Mr. Goings filed an objection to the language in Grandparents' proposed order. In his objection, Mr. Goings attempted to present new arguments to support his position that the Guardianship Appointment should be vacated. Specifically, in his objection, Mr. Goings suggested for the first time that he had parental rights that were entitled to constitutional protection. The court ultimately denied his objection, explaining that it was “not well-taken” because it “primarily seeks to reargue issues” which had already been “considered and ruled upon” by the court in both the Guardianship Action and the Paternity Action. The court also noted that the “parties have had a full opportunity to develop the facts in the record and to present testimony, if they so chose.”

¶ 10 Meanwhile, in the Paternity Action, on February 24, 2009—more than six months after Grandparents were confirmed as Child's guardians—the parties stipulated to the fact that Mr. Goings was Child's “biological and legal father.” ⁴ As a result, the court adjudged Mr. Goings to be Child's legal father and ordered him to make back payments and ongoing child support payments to Grandparents. Mr. Goings has not yet made any payments.

¶ 11 Ultimately, in the Guardianship Action, the court denied both of Mr. Goings's motions to vacate the Guardianship Appointment,⁵ concluding that the Guardianship Appointment was valid under the Testamentary Appointment Statute. Accordingly, the court rejected Mr. Goings's notice argument, noting that under the Testamentary Appointment Statute, “[p]arental testamentary appointments of guardianship do not have a notice requirement prior to confirmation under Utah law.” Further, the court found that, having failed to timely file his Paternity Action, Mr. Goings “was not entitled to legal recognition as a parent under Utah law” at the time the Guardianship Appointment was confirmed. The court found that Mr. Goings's legal status was instead that of an “alleged father.” Thus, the court reconfirmed the validity of Grandparents' appointment as Child's guardians.

¶ 12 Mr. Goings appealed to the Utah Court of Appeals. But his brief to the court of appeals contained numerous errors, including failing to cite to the record, failing to include page numbers in the Table of Contents or Table of Authorities, and failing to comply with other formatting requirements. In their response brief, Grandparents called the attention of the court to these deficiencies. Mr. Goings responded by filing a motion to amend the brief and attaching a copy of an amended brief in which he had corrected many of the errors. The court of appeals granted the motion, allowing Mr. Goings to file an amended brief, but also requiring his counsel to pay the Grandparents “their reasonable attorneys fees for the work expended in researching and preparing that portion of their brief devoted to demonstrating the inadequacy” of Mr. Goings's brief. The court of appeals then temporarily remanded the matter to the district court for a determination of reasonable attorney fees. Mr. Goings's counsel has not yet paid the Grandparents any portion of the amount the district court ultimately ordered him to pay.

¶ 13 Shortly thereafter, the court of appeals certified this case to us. Accordingly, we issued an order on January 17, 2012, granting the...