Begum v. Begum

2015 UT App 67

THE UTAH COURT OF APPEALS

TIFFANY BEGUM,
Petitioner and Appellant,
v.
ANTHONY BEGUM,
Respondent and Appellee.

Memorandum Decision
No. 20130323-CA
Filed March 19, 2015

Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 084903467

Grant W.P. Morrison and Matthew G. Morrison,
Attorneys for Appellant
Terry R. Spencer, Attorney for Appellee

JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.

PEARCE, Judge:

¶1 Tiffany Begum (Wife) appeals from the district court’s
final judgment in the divorce action between herself and
Anthony Begum (Husband). We affirm.

¶2 Husband and Wife married in 1989. Wife petitioned for a
divorce in August 2008. A domestic relations commissioner
issued temporary orders granting physical custody of the
parties’ minor children to Wife. The commissioner ordered
Husband to make monthly child support payments of $1,996 and
monthly spousal support payments of $3,600.
 Begum v. Begum

¶3 The district court conducted a two-day trial in November
and December 2009. After trial, the district court issued findings
of fact and conclusions of law awarding Wife physical custody
of the minor children. The district court ordered Husband to pay
monthly child support of $1,996, monthly alimony of $2,546, and
a spousal support arrearage exceeding $30,000. The district court
reserved the issue of property division because the parties’ two
primary assets—a house and a Nevada motel—were subject to a
pending bankruptcy proceeding.

¶4 Both parties filed post-decree motions. In June 2010,
Husband filed a motion to set aside the divorce decree pursuant
to rule 60(b) of the Utah Rules of Civil Procedure. Husband’s
rule 60(b) motion argued that newly discovered evidence
demonstrated that Wife had committed fraud on the court by,
among other things, representing that she resided with the
minor children in Utah when in fact she spent half her time
residing in Nevada without the children.

¶5 The commissioner heard the pending motions and
recommended that the district court grant Husband’s rule 60(b)
motion on the issue of physical custody of the children. The
commissioner expressly couched his oral ruling on the rule 60(b)
motion in terms of a recommendation, stating, ‚I will
recommend that [the physical custody] provision be set aside.‛
Husband’s counsel prepared an order based on the
commissioner’s recommendation.

¶6 The proposed order stated, ‚The previously entered
Decree of Divorce is set aside so far as it awards [Wife] the
custody of the parties’ minor children. This issue, along with all
related financial support issues, shall be litigated before [the
district court+.‛ After amending the order to partially
accommodate Wife’s objections on an unrelated issue, the
commissioner approved the proposed order. The district court
signed the order later that same day.

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 Begum v. Begum

¶7 The district court conducted a second trial on August 16,
2011, at the conclusion of which it took all pending issues under
advisement. After trial, Husband purported to place additional
evidence before the court by attaching it to documents captioned
‚Notice of Lodging.‛1 Wife objected to these lodgings. The
district court scheduled a status hearing for January 3, 2012, but
rescheduled it to February 21, 2012, at Wife’s request. By this
time, Wife had expressed dissatisfaction with her trial counsel
and was seeking new representation.

¶8 Wife’s trial counsel attended the February 21 hearing, but
Wife, who had been informed of the hearing date, did not. At the
hearing, the district court reduced Husband’s child support
obligation to reflect that only one minor child was actually living
with Wife. The district court also terminated alimony based on
its finding that Husband had presented unrebutted evidence of
Wife’s cohabitation. See Utah Code Ann. § 30-3-5(10) (LexisNexis
2013) (providing that an alimony award ‚terminates upon
establishment by the party paying alimony that the former
spouse is cohabitating with another person‛). The district court
stated on the record that Wife would be allowed to present
further evidence if she wished. The district court also granted
Wife’s counsel leave to withdraw from his representation.

¶9 Husband’s counsel drafted a proposed Amended Decree
and delivered it both to Wife’s trial counsel and to Wife
personally. The proposed Amended Decree did not, however,
include the district court’s invitation to Wife to submit
additional evidence. The district court signed the proposed
Amended Decree on February 21—the same day as the status
hearing.

1. Throughout their briefs, the parties refer to these filings as
‚lodgings.‛ We keep that nomenclature.

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 Begum v. Begum

¶10 Wife filed a timely notice of appeal from the Amended
Decree. Two of her arguments on appeal challenge the district
court’s 2010 decision to set aside the original divorce decree. Her
remaining arguments focus on the district court’s handling of
the February 21, 2012 status hearing and the resulting Amended
Decree. Generally, we review a district court’s domestic-relations
decisions for abuse of discretion. See Tobler v. Tobler, 2014 UT
App 239, ¶ 12, 337 P.3d 296 (stating that we review parent-time,
child support, alimony, and property division decisions for
abuse of discretion); Trubetzkoy v. Trubetzkoy, 2009 UT App 77,
¶ 6, 205 P.3d 891 (stating that district courts generally have
‚considerable discretion‛ in making child custody
determinations). We review the district court’s interpretation of
court rules for correctness. See Kartchner v. Kartchner, 2014 UT
App 195, ¶ 13, 334 P.3d 1 (‚The trial court’s interpretation of the
rules of civil procedure presents a question of law which we
review for correctness.‛ (citation and internal quotation marks
omitted)).

¶11 Wife first argues that, by recommending the district court
grant Husband’s rule 60(b) motion, the commissioner exceeded
his authority by setting aside an existing district court order.
Wife further argues that the district court’s subsequent
acceptance of the commissioner’s recommendation did not
‚rectify the improper delegation of a core function of the district
court.‛ We see no error arising from the commissioner’s
participation in the district court’s resolution of Husband’s rule
60(b) motion.

¶12 Pursuant to rule 6-401(2)(D) of the Utah Rules of Judicial
Administration, domestic relations commissioners are
authorized to ‚*m+ake recommendations to the court regarding
any issue, including a recommendation for entry of final

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judgment.‛ Utah R. Jud. Admin. 6-401(2)(D).2 Wife argues that
this broad authority is limited by rule 6-401(4)(A), which
provides that commissioners ‚shall not make final
adjudications.‛ Id. R. 6-401(4)(A). Wife argues that a
commissioner’s recommendation to modify or set aside an
existing court order necessarily conflicts with rule 6-401(4)(A)
because, under the Utah Rules of Civil Procedure, ‚*a+
recommendation of a court commissioner is the order of the
court until modified by the court.‛ Utah R. Civ. P. 108(a). Wife
therefore concludes that in cases where a commissioner’s
recommendation would modify an existing court order, the
commissioner’s only permissible course of action is to certify the
matter to the district court. See Utah R. Jud. Admin. 6-401(3)(B)
(requiring commissioners to ‚*c+ertify those cases directly to the
district court that appear to require a hearing before the district
court judge‛).

¶13 We disagree with Wife’s reading of the rules. Even when
a commissioner’s recommendation acts to temporarily modify
an existing order, it is not a prohibited ‚final adjudication*+,‛
because district court action on the matter is still pending. See id.
R. 6-401(4)(A); Johnson v. Johnson, 2007 UT App 113U, para. 3 (per
curiam) (‚Clearly, the final adjudication in this case was entered
by the district court when it denied Wife’s objection to the
commissioner’s recommendation.‛); cf. Huish v. Munro, 2004 UT
App 76U, para. 2 (per curiam) (‚*T+he commissioner’s
recommendation is not [an appealable] final order entered by the
district court.‛). Here, the commissioner’s recommendation
anticipated further district court action, which in fact occurred.
We see no conflict between the commissioner’s recommendation
and rule 6-401(4)(A).

2. Wife acknowledges that, at least on its face, this language
‚appears to allow *commissioners+ somewhat unfettered
authority‛ to make recommendations in domestic cases.

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 Begum v. Begum

¶14 Even if the commissioner had exceeded his authority by
making the recommendation, that overreach would not impact
the validity of the district court’s own order granting Husband’s
motion for relief under rule 60(b) of the Utah Rules of Civil
Procedure. Wife relies on Holm v. Smilowitz, 840 P.2d 157 (Utah
Ct. App. 1992), for the proposition that a district court may not
ratify a commissioner’s exercise of judicial power when the
district court ‚did not have the authority to delegate away [its]
judicial power to *the commissioner+ in the first place.‛ Id. at 168.
However, the commissioner in Holm did much more than issue a
recommendation on a rule 60(b) motion. In Holm, the
commissioner

exceeded her authority by attempting to exercise
ultimate judicial power in: (1) deciding Holm’s
motion for Utah to assume jurisdiction; (2)
informing Holm’s attorney that it was her order
that [an] Ohio change of custody order be enforced
that night; (3) ordering the police to enforce the
undomesticated Ohio order; and (4) denying
Holm’s attorney’s request for a hearing before the
court with regard to the undomesticated Ohio
order.

Id. (emphasis omitted).

¶15 Here, the commissioner’s recommendation did not usurp
judicial authority but rather was an exercise of the authority
Utah’s court rules provide. Compare Utah R. Jud. Admin. 6-401(1)
(providing that ‚*a+ll domestic relations matters,‛ including
‚petitions to modify divorce decrees . . . and all other
applications for relief,‛ may be referred to a commissioner), with
Utah R. Civ. P. 101(j) (omitting rule 60(b) motions from a list of
motions that ‚shall be [made] to the judge to whom the case is
assigned‛). The commissioner never purported to exercise the
judicial authority to grant Husband’s motion. The order the
commissioner signed explicitly stated that the commissioner was

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 Begum v. Begum

approving the order as to form, and the order’s signature line
was reserved for the district court. Further, unlike in Holm, the
commissioner did not order police to enforce his
recommendation, nor did he suggest that the district court could
not rehear the rule 60(b) issue. For these reasons, Holm did not
preclude the district court from accepting the commissioner’s
recommendation in this case.

¶16 Wife next argues that the district court’s ruling on
Husband’s rule 60(b) motion was erroneous on its merits.
Husband sought rule 60(b) relief based on newly discovered
evidence and alleged fraud on the court. Husband alleged that
Wife had lied about the amount of time she spent living with the
children. Husband also alleged the Wife had hired a hit man to
kill him. Wife argues that this was not newly discovered
evidence warranting relief from judgment under rule 60(b)
because it was either ‚‘discoverable with reasonable diligence
prior to the conclusion of trial’‛ or ‚‘of such suspect credibility
as to make a different result on retrial unlikely.’‛ (Quoting State
v. Pinder, 2005 UT 15, ¶¶ 65, 70, 114 P.3d 551.) Wife also argues
that Husband’s new evidence would have been limited to use for
impeachment purposes.

¶17 The district court has ‚broad discretion‛ in ruling on rule
60(b) motions ‚because most are equitable in nature, saturated
with facts, and call upon judges to apply fundamental principles
of fairness that do not easily lend themselves to appellate
review.‛ Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198. The
outcomes of rule 60(b) motions ‚are rarely vulnerable to attack.‛
Id. Wife has not persuaded us that this is the rare case when the
district court’s ruling on a rule 60(b) motion must be overturned.
The district court disagreed with Wife’s arguments that
Husband’s new evidence was of limited value and credibility
and that the evidence could have been uncovered earlier with a
little elbow grease. We will not disturb the court’s decision to
exercise its broad discretion and grant Husband’s rule 60(b)
motion.

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 Begum v. Begum

¶18 Wife’s remaining arguments challenge various aspects of
the February 21, 2012 status hearing and Amended Decree. Wife
argues that the district court erred by accepting additional
evidence after trial, referring to three lodgings Husband made
after the second trial but before the status hearing. She contends
that the district court’s handling of those lodgings violated rule
43 of the Utah Rules of Civil Procedure, which generally
provides for witness testimony at trial to be given orally in open
court. See Utah R. Civ. P. 43(a) (‚In all trials, the testimony of
witnesses shall be taken orally in open court, unless otherwise
provided by these rules, the Utah Rules of Evidence, or a statute
of this state.‛). Wife also contends that the district court erred by
admitting the ‚hearsay documents . . . without allowing [Wife]
to cross examine as to the documents.‛

¶19 The district court has ‚broad discretion to admit or
exclude evidence,‛ Malloy v. Malloy, 2012 UT App 294, ¶ 7, 288
P.3d 597 (citation and internal quotation marks omitted), and ‚to
manage the cases before it,‛ Tobler v. Tobler, 2014 UT App 239,
¶ 12, 337 P.3d 296. We are not persuaded by Wife’s argument
that rule 43(a), which governs ‚the testimony of witnesses‛ at
trial, constitutes a blanket limitation on the court’s discretion to
allow post-trial supplementation of the evidence in appropriate
circumstances. Rather, it is Wife’s burden on appeal to
demonstrate both error and prejudice resulting from the district
court’s consideration of the particular evidence contained in
Husband’s lodgings. See R.B. v. L.B., 2014 UT App 270, ¶ 39, 339
P.3d 137.

¶20 Wife does not fully develop her arguments, but we are
sympathetic to her assertions that Husband’s lodgings may have
contained inadmissible hearsay, that the lodgings implicated
Wife’s right to conduct cross-examination, and that the district
court therefore erred in considering them. However, to obtain
relief on appeal, Wife must show ‚a reasonable likelihood that a
different result would have been reached absent the [alleged]
error.‛ Id. (citation and internal quotation marks omitted).

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 Begum v. Begum

¶21 The Amended Decree made two substantive changes to
the original decree: it terminated Wife’s alimony based on a
finding that she was cohabiting, and it reduced Husband’s child
support obligation based on a finding that only one minor child
continued to reside with Wife. Wife makes no effort to
demonstrate how Husband’s post-trial lodgings altered the
evidentiary picture on those issues. Wife’s obligation to explain
the effect of Husband’s lodgings assumes greater importance
because the district court had yet to rule on the issues presented
at the August 2011 trial. Wife, in essence, asks this court to
independently review the evidence presented at trial, compare it
to the lodgings, and conclude that the lodgings must have led
the district court to a different result than would have been
reached without them. It is Wife’s responsibility, not this court’s,
to develop and present arguments. Wife has not demonstrated
that Husband’s lodgings had any effect on the district court’s
ultimate ruling that Wife had been cohabiting and that only one
minor child remained in her care, and she has therefore not
established the prejudice that she must show in order to obtain
relief on appeal.

¶22 Finally, Wife argues that the district court’s Amended
Decree violated rule 7(f)(2) of the Utah Rules of Civil Procedure
in two different ways. She argues that the district court erred
when it signed the Amended Decree without awaiting the
expiration of the circulation and objection period rule 7(f)(2)
requires. See Utah R. Civ. P. 7(f)(2) (outlining the service and
objection-period requirements for orders prepared by prevailing
parties). She also argues that the Amended Decree was not in
‚conformity‛ with the district court’s oral rulings, because it did
not indicate that Wife could present further evidence on the
cohabitation issue. See id. (requiring certain prevailing parties to
prepare ‚a proposed order in conformity with the court’s
decision‛).

¶23 Rule 7(f)(2) does not limit the district court’s discretion to
enter judgments and orders. See Henshaw v. Estate of King, 2007

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UT App 378, ¶ 25, 173 P.3d 876. ‚To the contrary, Utah case law
indicates that the rules pertaining to the entry of proposed
judgments and orders are binding only on the litigants and not
on the trial court.‛ Id. In particular, rule 7(f)(2) ‚places no
restrictions on when a trial court may sign a proposed judgment
or order.‛ Id. Because rule 7(f)(2) governs the actions of litigants
and not those of the district court, the district court’s election to
execute the Amended Decree on the same day as the status
hearing does not violate the requirements of that rule.

¶24 Although the district court is not directly bound by rule
7(f)(2), the failure to allow an adequate objection period can
constitute an abuse of discretion. See Midland Funding LLC v.
Sotolongo, 2014 UT App 95, ¶¶ 36–39, 325 P.3d 871. Here,
however, Wife does not argue that the district court’s execution
of the Amended Decree without allowing an objection period
was an abuse of discretion independent of the alleged violation
of rule 7(f)(2). As Wife has not raised this issue on appeal, we
will not consider it. See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d
903.

¶25 Wife suggests that the district court violated her due
process rights by failing to indicate in the Amended Decree that
she could submit additional evidence. However, Wife was
represented by counsel at the status hearing where the ruling
was announced, and she was therefore charged with notice of it.
See Von Hake v. Thomas, 858 P.2d 193, 194 n.3 (Utah Ct. App.
1993) (‚*A+n attorney is the agent of the client and knowledge of
any material fact possessed by the attorney is imputed to the
client.‛), cert. granted, 868 P.2d 95 (Utah 1993), remanded to 881
P.2d 895 (Utah Ct. App. 1994); cf. D’Aston v. D’Aston, 790 P.2d
590, 592 (Utah Ct. App. 1990) (stating that where a party has
initially been served in a case and has appeared by counsel,
service of an order to show cause on the party’s attorney is
sufficient).

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 Begum v. Begum

¶26 Further, upon her discovery of the district court’s offer to
hear additional evidence from her, Wife appears to have made
no attempt to take the district court up on that offer. Nor has
Wife explained what evidence she was allegedly precluded from
presenting or how it would have made a difference. Cf. Salt Lake
City v. Almansor, 2014 UT App 88, ¶ 11, 325 P.3d 847 (explaining
that to demonstrate that the failure to allow an opportunity to
present additional evidence was harmful, an appellant must
address the anticipated content of that evidence and
demonstrate how it would have supported her position); Lucas v.
Murray City Civil Serv. Comm’n, 949 P.2d 746, 755 (Utah Ct. App.
1997) (stating that in order to establish a due process violation,
an employee must explain how the alleged ‚procedural errors
were harmful‛). Under these circumstances, Wife has not
established a due process violation that would warrant
disturbing the Amended Decree. Cf. Nelson v. Jacobsen, 669 P.2d
1207, 1213 (Utah 1983) (‚*T+he demands of due process rest on
the concept of basic fairness of procedure and demand a
procedure appropriate to the case and just to the parties
involved.‛ (citation and internal quotation marks omitted)).

¶27 Wife has not demonstrated any legal error or abuse of
discretion by either the commissioner or the district court. We
therefore affirm the Amended Decree. We grant Husband’s
request for attorney fees on appeal because he was awarded
such fees below and has prevailed on appeal. See Dahl v. Dahl,
2015 UT 23, ¶ 209 (‚Generally, when the trial court awards fees
in a domestic action to the party who then substantially prevails
on appeal, fees will also be awarded to that party on appeal.‛
(citation and internal quotation marks omitted)). We remand this
matter for the district court to determine the amount of that fee
award.

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