Somer v. Somer

2020 UT App 93

THE UTAH COURT OF APPEALS

KELLEY ANNE SOMER,
Appellant,
v.
ERIC JOHN SOMER,
Appellee.

Opinion
No. 20190293-CA
Filed June 11, 2020

Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 134900325

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.

MORTENSEN, Judge:

¶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
 Somer v. Somer

refusing to set aside the order modifying the decree. We
therefore affirm. 1

BACKGROUND

¶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

1. Because the parties have the same last name, we refer to them
by their first names throughout this opinion with no disrespect
intended by the apparent informality.

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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.

2. See Utah R. Civ. P. 6(a); id. R. 12(a).

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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.

ISSUES AND STANDARDS OF REVIEW

¶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

3. See id. R. 108(a) (establishing that “[a] party may file a written
objection to the recommendation” of a court commissioner).

4. Timeliness is not an issue here. Rule 60(c) provides a party “90
days after entry of the judgment or order” to file a motion under
rule 60(b)(1). Id. R. 60(c). The parties correctly agree that the
motion to set aside the default judgment was timely because the
(continued…)

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 Somer v. Somer

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

(…continued)
judgment was entered on June 28, 2018, and Kelley filed her
motion on July 25, 2018—indubitably within the prescribed
ninety-day period.

5. The parties also dispute whether Kelley presented a
meritorious defense, but we do not reach this issue because we
conclude that the district court did not abuse its discretion in
determining that Kelley failed to exercise excusable neglect. See
Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13, 376 P.3d
322 (“It is unnecessary, and moreover inappropriate, to even
consider the issue of a meritorious defense unless the court is
satisfied that a sufficient excuse has been shown.” (cleaned up)).
However, we take occasion to clarify that Eric’s arguments
misapprehend the law on this issue. He asserts that because
Kelley’s proposed answer “failed to present any admissible
evidence demonstrating a meritorious defense” and was
“unverified and unattested,” Kelley did not present a
meritorious defense. But Utah jurisprudence is abundantly clear
that proof beyond allegations stating a claim or defense is
unnecessary. E.g., Sewell v. Xpress Lube, 2013 UT 61, ¶¶ 33–34,
321 P.3d 1080; Metropolitan Water Dist. of Salt Lake & Sandy v. Sorf,
2013 UT 27, ¶ 24, 304 P.3d 824; Judson v. Wheeler RV Las Vegas,
LLC, 2012 UT 6, ¶¶ 22–25, 270 P.3d 456; Lund v. Brown, 2000 UT
75, ¶¶ 28–29, 11 P.3d 277.

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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.

ANALYSIS

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

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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. 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 its
discretion in denying her motion based on excusable neglect. We
disagree. Under rule 60(b) of the Utah Rules of Civil Procedure,
a district court may set aside “a judgment, order, or proceeding”
on a timely motion and “just terms” for one of the various
enumerated reasons, including “excusable neglect.” Utah R. Civ.

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P. 60(b)(1). In this context, district courts not only have
discretion, they have “broad discretion.” Jones v. Layton/Okland,
2009 UT 39, ¶ 17, 214 P.3d 859 (emphasis added); see also Fisher v.
Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198 (“The outcome of rule 60(b)
motions are rarely vulnerable to attack. We grant broad
discretion to . . . rule 60(b) rulings 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.”). Simply disagreeing with the
district court’s conclusion is not enough. We must conclude that
the decision was so illogical, arbitrary, or unreasonable that it
shocks our sense of justice. Jones, 2009 UT 39, ¶ 27. After all,
“[t]he equitable nature of the excusable neglect determination
requires that a district court be free to consider all facts it deems
relevant to its decision and weigh them accordingly.” Id. ¶ 18.

¶17 When exercising this broad discretion, a district court
must determine whether a party has exhibited due diligence.
“Due diligence is established where the failure to act was the
result of the neglect one would expect from a reasonably
prudent person under similar circumstances.” Sewell v. Xpress
Lube, 2013 UT 61, ¶ 29, 321 P.3d 1080 (cleaned up). “The ultimate
goal of the excusable neglect inquiry” is to determine “whether
the moving party has been sufficiently diligent that the
consequences of its neglect may be equitably excused.” Jones,
2009 UT 39, ¶ 20. Sufficient diligence supplies a “reasonable
justification or excuse for” a failure to respond. Sewell, 2013 UT
61, ¶ 15 (cleaned up).

¶18 Whether a party’s efforts are sufficient will always
depend on the attendant circumstances. Jones, 2009 UT 39, ¶ 22
(explaining that a party’s “failure to attend to its legal obligation,
may be sufficiently diligent and responsible, in light of the
attendant circumstances, to justify excusing it from the full
consequences of its neglect”). Sufficient diligence falls on a
spectrum between no diligence and perfect diligence. Id. ¶ 23.
Indeed, while exercising no diligence will never hit the mark of

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excusable neglect, exhibiting perfect diligence is not required. Id.
¶ 22 (“Perfect diligence is not required.”); Asset Acceptance LLC v.
Stocks, 2016 UT App 84, ¶ 19, 376 P.3d 322 (“Relief may not be
granted based on other equitable considerations where a party
has exercised no diligence at all.” (cleaned up)). Otherwise, rule
60(b)’s excusable neglect provision would be meaningless
because in a perfect world with perfect diligence no neglect
would ever occur.

¶19 Given the attendant circumstances of this case, the district
court acted within its discretion in determining that Kelley’s
actions fell short of sufficient diligence. It is true that Kelley
exercised some diligence. Rather than doing nothing during the
time she had to file her answer, Kelley made minimal efforts. She
first tried to hire her former attorney. When that was
unsuccessful, she sought to become competent to file an answer
by herself. She visited both Legal Aid Society at the Matheson
Courthouse and the West Jordan Family Law Clinic, receiving an
informative packet related to filing answers. She also engaged in
independent research of the Utah Rules of Civil Procedure at the
courthouse library. And she called the commissioner’s chambers
several times, leaving voice messages and a note as well. Finally,
she filed a motion to extend the deadline to answer only days
after the answer was due. These efforts may have supported a
decision to grant the motion to set aside the default judgment.
But the motion was denied. We cannot say that the district court
abused its broad discretion for the following reasons.

¶20 To begin, Kelley received personal service of the petition,
so it is indisputable that she had knowledge during the entire
period that she had to file an answer or even a motion to extend
the deadline for that matter. 6 Moreover, the summons contained

6. On this point, Kelley claimed in her motion for an extension
to answer that she did not receive notice until she sought
advice. But the district court found this claim was not credible,
(continued…)

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cautionary language. It stated that “you must file your written,
signed answer with the clerk of the court” within twenty-one
days. The summons 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.” Additionally, Kelley claims that the
petition surprised her, but this is dubious. The conditions set
forth in the divorce decree gave the parties notice that alimony
was modifiable. Thus, a petition to modify was far from
unforeseeable. And this particular petition was more foreseeable
because Kelley, in her proposed answer, admitted to staying at
the other man’s house, albeit allegedly with her children who
were staying there, which could be seen by Eric as cohabiting—
one of the explicit divorce decree conditions for modification.

¶21 Furthermore, Kelley knew very well how to hire an
attorney, as she had been represented by four attorneys during
the divorce litigation. Thus, she was capable of contacting any
number of attorneys from our state’s bar to assist her in filing
her answer. More to that point, she could have even hired an
attorney for the limited purpose of helping her file an answer
while she retained more permanent counsel. And the district
court found that Kelley’s first attempt to do anything proactive
in this case—attempting to retain one of her former attorneys—
was just eight days before the answer was due. Under different
circumstances, involving a person less familiar with attorneys,
this aspect of the case may not be as significant. But Kelley’s
familiarity with hiring an attorney militates against her in this
case, especially given the full twenty-two days she had to retain
one and her single, delayed attempt to that end.

(…continued)
stating that “it seems unlikely that [Kelley] would pursue
information . . . regarding service, were she unaware that the
Petition to Modify had been filed.” Kelley has not challenged
this finding of fact on appeal.

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 Somer v. Somer

¶22 Another fact works against Kelley in this case: she had a
history of tardiness. Three motions for default judgment had
been filed against her during the divorce litigation due to alleged
dilatory actions. And two of those motions were related to her
failure to appear or appoint counsel, as she proceeded pro se.
From this experience with previous motions for default
judgment, Kelley knew the consequences of not responding on
time. And, as noted, the possibility of a default judgment was
explicitly stated on the summons she received. Therefore, she
was well-aware of what would occur if she did not exercise
sufficient diligence.

¶23 Ultimately, Kelley did not attempt to file anything in the
prescribed time. All her efforts were essentially research without
taking the required action, which of course was actually filing a
timely answer—or something else within the specified time. And
the district court concluded that, among Kelley’s efforts, she
must have received information on how to file an answer. The
court stated that it did not “find it credible that she did not get
information on how to file a simple answer in this matter.”
Kelley does not challenge this finding. Indeed, she spoke with
Legal Aid Society at the courthouse, an attorney at the West
Jordan Family Law Clinic, received an answer packet with an
explanation of how to answer and defend petitions, and did
research of her own into the rules of civil procedure. Therefore,
Kelley made a conscious choice not to do what she had been
informed of: timely filing an answer.

¶24 In short, Kelley’s meager efforts lend support to the
conclusion that her neglect was not excusable, and we defer to
the district court’s broad discretion. See Jones, 2009 UT 39, ¶ 17. 7

7. Kelley also contends that the district court erred by not
considering the four excusable neglect factors set forth in West v.
Grand County, 942 P.2d 337, 340–41 (Utah 1997). But West itself
(continued…)

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 Somer v. Somer

CONCLUSION

¶25 We hold that the district court committed error in its rule
108 review of the commissioner’s recommended ruling, but that
the error was invited, and therefore not subject to reversal. We
also hold that the district court did not exceed its broad
discretion in determining that Kelley’s actions were not
excusable under rule 60(b)(1) of the Utah Rules of Civil
Procedure. Accordingly, we affirm.

(…continued)
made clear that those factors are neither necessary nor
dispositive. Id. (explaining that situations of excusable neglect
“are so varied and complex that no rule adequately addressing
the relevance of all . . . facts can be spelled out” and noting that
the four factors “are not dispositive” (cleaned up)). And our
supreme court has reaffirmed those points in its subsequent
jurisprudence. See, e.g., Jones v. Layton/Okland, 2009 UT 39, ¶ 18,
214 P.3d 859 (clarifying that a district court is “free to consider
all facts it deems relevant to its decision and weigh them
accordingly”). Furthermore, other supreme court opinions have
not even mentioned West or its four factors in analyzing the
issue of excusable neglect. See generally Sewell, 2013 UT 61;
Metropolitan, 2013 UT 27; Judson, 2012 UT 6. Therefore, Kelley’s
argument is unavailing.
Kelley also argues that the district court erred in its
factual findings that “this matter was pending since 2013” and
that she was not likely surprised by Eric’s petition due to her
experience with the divorce litigation. She asserts that “the judge
got the facts wrong.” As a means of explaining background, the
court was commenting on the divorce litigation in relation to
Eric’s petition to modify and its finding that Kelley was not
surprised, not erroneously conceiving that Eric’s petition was
brought in 2013. Thus, Kelley’s arguments in this regard are
entirely unpersuasive.

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