Harper v. Harper

2013 UT App 258
_________________________________________________________

THE UTAH COURT OF APPEALS

SHERISE A. HARPER,
Petitioner and Appellee,
v.
BRUCE A. HARPER,
Respondent and Appellant.

Per Curiam Decision
No. 20120994‐CA
Filed October 31, 2013

Third District Court, Tooele Department
The Honorable Robert W. Adkins
No. 094300222

Bruce A. Harper, Appellant Pro Se
Sherise A. Harper, Appellee Pro Se

Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, AND
JUDITH M. BILLINGS.1

PER CURIAM:

¶1 Bruce A. Harper (Husband) seeks to appeal a March 29, 2012
order on his petition to modify the parties’ divorce decree and an
October 26, 2012 order on his motion to set aside the judgment on
his petition to modify. The motion to set aside a judgment under
rule 60(b) of the Utah Rules of Civil Procedure did not extend the
time for appeal from the March 29, 2012 order. See Utah R. App. P.
4(b). However, an order on a motion to set aside a judgment is
itself appealable. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950,

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11‐201(6).
Harper v. Harper

970 (Utah Ct. App. 1989). Husband’s notice of appeal is timely only
from the October 26, 2012 order.2

¶2 Only issues challenging the October 26, 2012 order on the
motion to set aside the judgment are before us in this appeal. Those
issues are whether the district court erred in denying the motion to
set aside its orders regarding (1) the parties’ life insurance policy,
(2) Husband’s claim for reimbursement of amounts paid for the
children’s medical expenses, (3) child custody, and (4) amounts
claimed by Husband related to the marital residence. When an
order on a motion to set aside a judgment is appealed, the appeal
is limited to review of the motion to set aside and is not an appeal
from the underlying judgment. See Franklin Covey Client Sales, Inc.
v. Melvin, 2000 UT App 110, ¶ 19, 2 P.3d 451. The district court is
afforded broad discretion in ruling on a motion for relief from a
judgment, and its determination will not be disturbed absent an
abuse of discretion. See Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct.
App. 1989).

¶3 In its March 29, 2012 order, the district court found that
Husband was insured under the joint life insurance policy owned
by Sherise A. Harper (Wife) and ordered him to pay $352 to Wife
for premiums paid by her for his life insurance. The district court
also found that Wife was allowed to change the beneficiary on her
policy and that Husband could also change his beneficiary.
Husband asserted that Wife’s change of beneficiary extinguished
his obligation to pay for life insurance. Husband also claimed that
requiring him to reimburse Wife for amounts paid for the

2. Husband incorrectly claims that because he filed a motion to set
aside the judgment after the district court announced its ruling at
the February 17, 2012 hearing on his petition to modify, “the
motion to set aside should have trumped the signing of the order.”
This claim is without merit. See Utah R. Civ. P. 60(b) (stating that
a motion under rule 60(b) “does not affect the finality of a
judgment or suspend its operation”).

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Harper v. Harper

premiums for his life insurance and to continue to pay $14.50 per
month so long as he is insured constituted an improper
modification of the decree.

¶4 The district court denied the motion to set aside its orders
requiring Husband to reimburse Wife for premiums to provide life
insurance for Husband and its ruling that Wife was not required to
keep Husband as her beneficiary. At the hearing on the motion to
set aside the judgment, Husband also claimed that he was entitled
to receive $24,000 as the surrender value of his life insurance. There
was no factual basis for this claim based upon the actual life
insurance policy. However, the district court ruled, in the
alternative, that Husband could elect to either surrender his life
insurance under the policy and obtain the surrender value, if any,
or to remain on the policy, reimburse Wife $14.50 per month for the
premium attributable to his life insurance, and change his
beneficiary, if he chose to do so. The court ordered Wife to remain
in court and to execute any necessary documents to allow Husband
to make the changes he wanted to make.

¶5 The district court’s ruling was consistent with the agreement
incorporated in the divorce decree regarding life insurance.
Husband’s claim that Wife was required to keep him as her
beneficiary, and that his obligation to pay half the premium was
contingent upon her keeping him as the beneficiary, is without
merit. The district court did not abuse its discretion in refusing to
set aside orders requiring Husband to reimburse Wife for amounts
attributable to premiums paid by her for his life insurance and
requiring him to pay his share of the premium as long as he
remained an insured under the policy.

¶6 In the March 29, 2012 order on the petition to modify, the
district court found that Husband was required to pay Wife his
share of uninsured medical expenses through September 2011 in
the amount of $842, based upon the evidence presented at the
February 2012 evidentiary hearing. Husband does not dispute his
obligation to equally share uninsured medical expenses of the

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Harper v. Harper

children. He disputes the amount that he was required to pay.
Husband has not demonstrated that the district court abused its
discretion in failing to set aside the judgment regarding medical
expenses.

¶7 By stipulation, the divorce decree provided that the parties
would have joint legal custody of their children with primary
physical custody awarded to Wife. In the March 29, 2012 order on
the petition to modify, the district court denied a change in the
child custody provided in the divorce decree, finding that the
children were well‐adjusted and that nothing had been presented
to the court to demonstrate any concern with the children’s
remaining in Wife’s custody. The district court also found that it
would not be in the children’s best interests to order joint physical
custody.

¶8 In the motion to set aside the judgment, Husband argued
that physical custody should be split equally. Much of Husband’s
argument supporting a custody change was based on allegations
that Wife married a man (Second Husband) who was restricted to
supervised visits with his biological children. However, Wife was
divorced from Second Husband at the time of the court’s ruling
and the alleged facts were irrelevant to the custody ruling.
Husband’s claim in this appeal that the district court “purposely
destroyed” the record of Second Husband’s testimony is without
factual support. Furthermore, although a portion of Second
Husband’s testimony was not recorded due to technical problems,
Husband failed to raise that omission to the district court in his
motion to set aside the judgment or to seek supplementation of the
record on appeal in accordance with rule 11 of the Utah Rules of
Appellate Procedure. The district court did not abuse its discretion
in denying the motion to set aside the judgment regarding child
custody.

¶9 In the March 29, 2012 order on the petition to modify, the
district court found that “all of the issues regarding the home have
been resolved, that neither party has a claim against the other for

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Harper v. Harper

any of those debts and expenses that were identified in the decree
of divorce, that the equity in the home was to pay for those debts
and expenses.” Wife gave Husband a quit claim deed to extinguish
all of her obligations to him, thereby relinquishing all of her own
equity in the home. Although Husband persists in claiming that he
is entitled to recover additional amounts from Wife related to the
marital residence, the district court did not abuse its discretion in
denying the motion to set aside its orders regarding the marital
residence and debts.

¶10 Husband claims in this appeal that the district court erred in
failing to address the claims made in his separate order to show
cause that Wife willfully breached the divorce decree by filing
bankruptcy. Claims made in the order to show cause were not
within the scope of the proceedings on the motion to set aside the
judgment, and the district court did not err in refusing to hear
them. To the extent that Husband claims that the district court’s
rulings should be set aside based upon alleged bias or prejudice,
those assertions are not properly before this court and must have
been raised by a timely motion to disqualify under rule 63 of the
Utah Rules of Civil Procedure.

¶11 Affirmed.

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