Young v. Hagel

2020 UT App 100

THE UTAH COURT OF APPEALS

JOSHUA J. YOUNG,
Appellee,
v.
MICHAELA M. HAGEL,
Appellant.

Opinion
No. 20190661-CA
Filed June 25, 2020

Second District Court, Farmington Department
The Honorable John R. Morris
No. 156700664

Steve S. Christensen and Clinton R. Brimhall,
Attorneys for Appellant
Mark R. Hales, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DIANA HAGEN concurred.

HARRIS, Judge:

¶1 After nearly four years of contested litigation in a child
custody case, the district court entered a default order against
Michaela M. Hagel after her attorney purported to withdraw
and she did not file a response to a notice to appear or appoint
counsel. After learning of the default order, Hagel asked the
district court to set it aside, but the district court denied her
motion. Hagel now appeals that denial, and we reverse.

BACKGROUND

¶2 Hagel and Joshua J. Young have a child (Child) together.
In 2011, a Texas court entered an “agreed order” appointing
Young v. Hagel

Young as Child’s “sole managing conservator” and limiting
Hagel to “reasonable supervised visitation,” finding that it
would not be in Child’s best interest for Hagel to have “specific
periods of possession” of Child. The Texas court also ordered
that Child have no contact with Hagel’s current husband. In
2015, after relocating to Utah, Young registered the Texas order
with the Utah district court.

¶3 Soon after the Texas order was registered in Utah, both
Young and Hagel—through counsel—filed competing petitions
to modify it. Young alleged that Hagel had allowed the Child to
have contact with her husband, and therefore asked the court to
allow Hagel to exercise parent-time only in Utah and only under
professional supervision. In her petition, Hagel asserted that her
circumstances had changed, and that she not only should be
allowed unsupervised parent-time, but that she should be
awarded sole physical custody of Child. After over a year of
litigation, the parties reached agreement on modification of the
Texas order, and in 2016 the Utah district court entered an order
encapsulating that agreement and superseding the Texas order.

¶4 Over a year later, in early 2018, Hagel filed a motion for
an order to show cause, asking the court to hold Young in
contempt for alleged violations of the operative custody order.
Young responded by filing a counter-motion of his own, alleging
that Hagel had violated the order, and asking the court to hold
her in contempt. The matter came before a court commissioner,
who recommended that the parties be ordered to participate in
mediation. No party objected to that recommendation, and the
district court entered an order commanding the parties to
mediate their differences, and stating that if mediation proved
unsuccessful, then the parties should “schedule a pre-trial
conference to certify the issues for [an] informal trial.”

¶5 The parties complied with the court’s order, and
participated in mediation, but they were not able to reach
agreement on the issues raised in the competing cross-motions
for contempt. After the unsuccessful mediation, Hagel’s attorney

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Young v. Hagel

filed a notice announcing his withdrawal, incorrectly certifying
that no motions were currently pending, 1 and incorrectly
identifying the client from whose representation he was
attempting to withdraw. Hagel’s counsel did not file a motion
asking the court for permission to withdraw, and the court did
not sign an order authorizing counsel to withdraw.

¶6 In response to Hagel’s attorney’s notice of withdrawal,
Young’s attorney filed a document captioned “Notice of
Appearance,” but which was apparently intended to serve as a
notice to appear or appoint counsel. See Utah R. Civ. P. 74(c).
Young’s attorney mailed a copy of the document to Hagel at her
home address. In the document, Young’s attorney told Hagel
that she “has the responsibility to formally appear personally or
to appoint counsel in this matter,” and that “the failure to file a
formal personal Notice of Appearance will result in striking all
your pleadings, an entry of default, and [Young’s] pleadings
being exclusively used to create any pending orders consistent
with Rule 55(b)(1)(A) of the Utah Rules of Civil Procedure.” The
document did not purport to give Hagel a firm deadline by
which any such appearance had to be made, although it did state
that “[n]o further proceedings shall be held in the case until 20
days after” the document was filed. 2

1. A few weeks prior to the mediation, Young’s attorney did the
same thing—he filed a notice of (but not a motion for)
withdrawal of counsel, incorrectly certifying that no motions
were pending. Before the mediation occurred, however, Young
was able to retain new counsel, and was represented by that
counsel at the mediation.

2. Rule 74(c) of the Utah Rules of Civil Procedure prescribes a
period of twenty-one days, rather than twenty, in which “[n]o
further proceedings shall be held in the case” following the filing
of a notice to appear or appoint counsel.

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¶7 Hagel filed no response to the “Notice of Appearance,”
either personally or through counsel. About two months later,
Young filed a motion asking the court to enter default against
Hagel due to her lack of response. However, Young did not
serve a copy of his motion on Hagel and, predictably, she did
not respond to it. A court clerk later entered a default certificate.

¶8 After obtaining the default certificate, Young then filed a
“Motion for Default Orders,” in which he asked the district court
to hold Hagel in contempt. He also asked the court to order
certain modifications to the parties’ custody arrangement,
including requiring that Hagel exercise parent-time exclusively
in Utah, that Young would be allowed to claim Child for tax
purposes, and that Hagel pay his attorney fees. Young did not
serve a copy of this motion on Hagel, and Hagel did not respond
to it. The district court, without holding a hearing, entered
Young’s requested order (the Order), captioned “Order of
Modification.” In that order, the court held Hagel in contempt
for various reasons, including smoking around Child,
“harassing” Young’s spouse, and for a child support arrearage;
entered judgment against her for $850 related to unpaid child
support; and “restrained” her from “calling [the] cops to do
welfare checks” on Child and from “calling CPS.” 3 The court
also ordered that Young “is awarded his attorney fees.” In
addition, the court ordered that all of Hagel’s parent-time “must
occur in Utah” and that Young could “claim [Child] for tax
purposes.” Following entry of the Order, Young mailed Hagel a
copy of it, as required by rules 5(a)(2)(D) and 58A(g) of the Utah

3. The court actually entered two separate versions of the “Order
of Modification,” electronically signed fourteen seconds apart.
The only discernible difference between the two orders is that
the first one contains the $850 judgment and the second one does
not. Neither order purports to supersede the other, and neither
one was ever set aside, and it is therefore unclear which order
governs. Because we vacate the Order, we need not further
consider this question.

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Rules of Civil Procedure, even though he had not served her
with copies of any of the motions leading up to the Order.

¶9 About three weeks later, a new attorney representing
Hagel entered an appearance and filed a motion asking the
district court to set aside the Order. The motion invoked rule
60(b) of the Utah Rules of Civil Procedure, and asserted that
Hagel’s actions in failing to respond to the “Notice of
Appearance” and the motions for default were due to excusable
neglect. Hagel also pointed out, among other things, that her
previous attorney’s notice of withdrawal was improper under
rule 74(a) of the Utah Rules of Civil Procedure, which states that,
when motions are pending, “an attorney may not withdraw
except upon motion and order of the court.” Young opposed the
motion, and the court denied it in a written ruling and order.

ISSUE AND STANDARD OF REVIEW

¶10 Hagel now appeals, arguing that the court improperly
denied her motion to set aside the Order. Though district courts
have “broad discretion” to grant or deny rule 60(b) motions, that
discretion is “not unlimited,” especially in the context of default
judgments. See Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480
(quotation simplified); see also Lund v. Brown, 2000 UT 75, ¶ 10,
11 P.3d 277 (stating that “the nature of a default judgment and
the equitable nature of rule 60 provide further limits” on a
court’s discretion). When a default judgment is at issue, rule
60(b) motions “should be liberally granted because of the
equitable nature of the rule,” and courts “should exercise [their]
discretion in favor of granting relief so that controversies can be
decided on the merits rather than on technicalities.” Menzies,
2006 UT 81, ¶ 54. A district court abuses its discretion if it denies
a rule 60(b) motion to set aside a default judgment in a case
where all of the requirements for the granting of that motion are
met. See id. (stating that “it is an abuse of discretion for a district
court to deny a 60(b) motion to set aside a default judgment if
there is a reasonable justification for the moving party’s failure

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and the party requested 60(b) relief in a timely fashion”); Lund,
2000 UT 75, ¶ 11 (stating that “it is quite uniformly regarded as
an abuse of discretion to refuse to vacate a default judgment
where there is reasonable justification or excuse for the
defendant’s failure to appear, and timely application is made to
set it aside” (quotation simplified)); see also Katz v. Pierce, 732
P.2d 92, 93 (Utah 1986) (per curiam) (“Where there is doubt
about whether a default should be set aside, that doubt should
be resolved in favor of doing so.”). And, “[i]f a district court’s
ruling on a 60(b) motion is based on clearly erroneous factual
findings or flawed legal conclusions, the district court has likely
abused its discretion.” Menzies, 2006 UT 81, ¶ 55.

ANALYSIS

¶11 A litigant is “entitled to have a default judgment set aside
under rule 60(b)” if three requirements are satisfied: “(1) the
motion is timely; (2) there is a basis for granting relief under one
of the subsections of [rule] 60(b); and (3) the movant has alleged
a meritorious defense.” 4 Menzies, 2006 UT 81, ¶ 64. It is
uncontested that Hagel’s rule 60(b) motion was filed in a timely
fashion; we therefore focus our discussion on the other two
requirements, both of which are contested here.

A

¶12 To meet the second requirement, Hagel must demonstrate
that at least one of the subsections of rule 60(b) provides a basis

4. This third requirement need not be met if the movant
successfully invokes subsection (4) of rule 60(b), a provision that
allows relief if the judgment is void. See Judson v. Wheeler RV Las
Vegas, LLC, 2012 UT 6, ¶ 15, 270 P.3d 456. On appeal, Hagel does
not invoke rule 60(b)(4), and therefore she must satisfy all three
requirements.

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Young v. Hagel

for setting aside the Order. In an effort to make this showing,
Hagel points to subsection (1) of rule 60(b), and asserts that her
failure to respond to the “Notice of Appearance” and to Young’s
default motions was the result of excusable neglect. See Utah R.
Civ. P. 60(b)(1) (stating that a court “may relieve a party . . . from
a judgment [or] order . . . for . . . mistake, inadvertence, surprise,
or excusable neglect”). We find Hagel’s assertion persuasive,
because her failure to respond to the “Notice of Appearance” did
not, by itself, automatically place her in default.

¶13 According to our rules, “default” may be entered against
a party who “has failed to plead or otherwise defend” the case,
see id. R. 55(a), and a party who is “in default” is no longer
entitled to receive service of motions and other papers filed in
the case, see id. R. 5(a)(2) (stating that “[n]o service is required on
a party who is in default”). Young did not serve Hagel with
copies of his motions for default, and asserts that he was not
required to do so because Hagel was “in default,” for purposes
of rule 5, once Hagel failed to respond to the “Notice of
Appearance” within twenty-one days. The district court appears
to have credited this argument; indeed, an implied premise of its
order of dismissal was that Hagel was in default for failing to
respond to the notice.

¶14 Young correctly notes that a litigant who is properly
served with a complaint and who fails to make a timely response
is considered to be in default and no longer entitled to service of
documents, even if the clerk has not yet entered a default
certificate. See Abrogast Family Trust v. River Crossings, LLC, 2010
UT 40, ¶ 23, 238 P.3d 1035 (stating that, “unless a party enters a
formal appearance through a pleading in the trial court, it has
not appeared and is not entitled to service under rule 5”
(quotation simplified)); see also Cutting v. Allenstown, 936 F.2d 18,
21 n.1 (1st Cir. 1991) (“Where defendants . . . were served with
the summons and d[id] not appear and answer within the
required period, they [we]re parties in default for Rule 5(a)
purposes,” notwithstanding that “the clerk had yet to enter a
default” (quotation simplified)). In the context of a litigant who

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has failed to respond at all to a duly-served complaint, the
outcome of these cases aligns with the text of the operative rules;
after all, such a litigant has “failed to plead or otherwise defend”
the case, which is the prerequisite for “default” in our rules. See
Utah R. Civ. P. 55(a).

¶15 But a litigant who fails to timely respond to a notice to
appear or appoint has not necessarily “failed to plead or
otherwise defend” against allegations raised in a complaint.
Such a litigant, by definition, has been involved in the case, with
counsel, for some time already before the attorney’s withdrawal,
and suddenly finds herself without counsel. Courts should not
automatically infer, solely from a newly pro se litigant’s failure
to file any document within twenty-one days of the filing of a
notice to appear or appoint, that the litigant has no further
interest in litigating the case.

¶16 And no provision in our rules requires any such
automatic inference. Rule 74(c) directs opposing counsel to send
the newly pro se party a notice “informing the party of the
responsibility to appear personally or appoint counsel,” and
prescribes a twenty-one-day hiatus in the litigation, but rule 74
does not set forth any deadline (as, for instance, rule 12(a) does
for responding to a complaint) for the newly pro se party to file
any particular document. See generally Utah R. Civ. P. 74. And
rule 74 likewise does not set forth any particular consequence
that will necessarily be visited upon the newly pro se party for
failure to file any document within any particular timeframe; no
provision of that rule or any other indicates that a party who
fails to respond to a rule 74(c) notice is “in default.” Thus, we
disagree with Young’s contention that Hagel was in default here;
while she did not file a response to the “Notice of Appearance,”
she had been actively litigating the case for years and thus had
not failed to “plead or otherwise defend” the case. See id. R.
55(a). And because she was not in “default” under rule 55(a), we
cannot consider her “in default” for the purposes of rule 5(a)(2).

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¶17 To be sure, a newly pro se party is not entitled to remain
inactive indefinitely, and the opposing party, after expiration of
the twenty-one-day hiatus mandated by rule 74(c), may of
course seek relief from the court. In appropriate cases, and
among other potential sanctions, the opposing party may ask the
court to enter default against the newly pro se party. But that
party is still entitled to be served with a copy of all documents
filed in the case, including any motion seeking sanctions, and
should not be considered to be in “default”—under either rule
55(a) or rule 5(a)(2)—merely by virtue of failing to respond to
the notice to appear or appoint. 5

¶18 The Order contains no explicit analysis of why the district
court considered Hagel in “default.” The court appears to have
based that conclusion solely on her failure to respond to the
“Notice of Appearance.” But this conclusion was unwarranted.
Given her active participation in the litigation up to that point,
including the recent mediation, Hagel had not failed to plead or
otherwise defend the case; to the contrary, she had shown a
longstanding desire to advocate for custody of Child. A party
should not be considered in default simply for failing to respond
to a notice to appear or appoint, and we are aware of no other
ground upon which the court might have presumed that Hagel
was no longer interested in participating in the litigation.

¶19 Hagel, of course, cannot be faulted for failing to respond
to Young’s motions for default, because she was not served with

5. We find support for this conclusion in the local rules of Utah’s
federal courts, which provide that “[a]n unrepresented party
who fails to appear within twenty-one (21) days after entry of
the order [allowing attorney withdrawal], or within the time
otherwise required by the court, may be subject to sanction . . . ,
including but not limited to dismissal or default judgment.” See
DUCiv R83-1.4(e)(5), https://www.utd.uscourts.gov/local-civil-
rules#eProcedureWithdrawal [https://perma.cc/TN4L-HD37]
(emphasis added).

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those papers and there is no indication that she was even aware
that they had been filed. Because she was not “in default,” she
was entitled to service of those papers. See Utah R. Civ. P. 5(a)(2).
And we think it likely that, if served with those motions, Hagel
would have responded to them. And we have doubts about
whether the district court would have granted those motions for
default if Hagel had responded to them. Default was a harsh
sanction in this case, especially considering that the case
involved custody of Child 6 and that Hagel had vigorously
litigated the matter for years. 7

6. Before modifying a custody order to transfer custody of a
child from one parent to another, a district court—even in a
default setting—must “take evidence and then make findings
that a substantial change of circumstances has occurred and that
transferring custody of the child is in the child’s best interests.”
Wright v. Wright, 941 P.2d 646, 652 (Utah Ct. App. 1997); see also
Chaparro v. Torero, 2018 UT App 181, ¶ 40, 436 P.3d 339 (stating
that a court “cannot avoid making these findings by modifying
custody arrangements as a sanction”). In this case, although the
court did not transfer custody of Child from one parent to the
other, the Order did modify Hagel’s parent-time (by requiring
that all of it occur in Utah) and “restrained” Hagel from
contacting police to “do welfare checks” and from “calling CPS”
for any reason, and the court made no finding that any of these
new provisions were in Child’s best interest.

7. We also note that Standard 16 of Utah’s Standards of
Professionalism and Civility mandates that “[l]awyers shall not
cause the entry of a default without first notifying other counsel
whose identity is known, unless their clients’ legitimate rights
could be adversely affected.” Utah Sup. Ct. R. Prof. Practice 14-
301(16) (LexisNexis 2019). In Arbogast Family Trust v. River
Crossings, LLC, 2010 UT 40, 238 P.3d 1035, our supreme court
held that an attorney could violate this standard even while
complying with rule 5 of the Utah Rules of Civil Procedure, and
(continued…)

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¶20 For all of these reasons, the district court erred by
presuming that Hagel was in “default,” and where a district
court grants a rule 60(b) motion on the basis of a “flawed legal
conclusion[], the district court has likely abused its discretion.”
Menzies v. Galetka, 2006 UT 81, ¶ 55, 150 P.3d 480. Hagel was
under no rule-based deadline to respond to Young’s “Notice of
Appearance” in any particular time frame, and had done
nothing else—other than not respond to that notice—to merit an
assumption that she was uninterested in participating in a
lawsuit in which she had actively participated for nearly four
years. And because Young erroneously considered Hagel to be
“in default” pursuant to rule 5, Hagel was never served with
copies of Young’s motions for default. Under these
circumstances, we are hard-pressed to identify any neglect at all
on Hagel’s part; certainly any such neglect was entirely
excusable. 8 Accordingly, Hagel has demonstrated that rule
60(b)(1) provides a basis for setting aside the Order.

(…continued)
that an attorney who sent a letter revoking an open-ended
extension and demanding an answer to a complaint within
twenty days was still required, by the standard, to notify the
other side when, at the expiration of the new twenty-day
deadline, it sought entry of default from the court. Id. ¶¶ 5, 42. In
this case, we acknowledge that Young told Hagel, in the “Notice
of Appearance,” that default “will result” if she did not respond,
but we are troubled that Hagel received no other notice that a
motion for default was later filed. The actions taken by Young’s
attorney appear to have been based on a good-faith (albeit
incorrect) interpretation of rule 5(a)(2). Nevertheless, we caution
attorneys to keep Standard 16 in mind in similar situations.

8. Hagel identifies two other reasons why any neglect on her
part should be excused: she asserts that her attorney’s
withdrawal was improper, and notes that the “Notice of
Appearance” was materially inaccurate. We do not rest our
(continued…)

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(…continued)
decision upon these arguments, in part because Hagel has not
provided any evidence—for instance, through an affidavit—that
either condition actually contributed to her failure to respond to
the notice. However, both conditions merit additional mention.
Hagel is correct that her attorney’s withdrawal was
improper. Rule 74(a) of the Utah Rules of Civil Procedure
provides that, “[i]f a motion is pending . . . , an attorney may not
withdraw except upon motion and order of the court.” At the
time her attorney filed his notice of withdrawal, the contempt
motions were still pending. In that situation, any proper
withdrawal could only occur with court approval, which was
never obtained. We caution attorneys not to attempt withdrawal,
by notice only, when motions are pending.
It is also important for attorneys to take care when
drafting notices to appear or appoint counsel. Such notices are,
by definition, intended for consumption by newly-attorneyless
litigants. We recognize that it is “the substance of [a document]
rather than its caption that governs its interpretation,” Fish v.
Fish, 2016 UT App 125, ¶ 7, 379 P.3d 890, and that parties who
choose to represent themselves in court “will be held to the same
standard of knowledge and practice as any qualified member of
the bar,” Lundahl v. Quinn, 2003 UT 11, ¶ 3, 67 P.3d 1000
(quotation simplified). But when a litigant receives a notice to
appear or appoint, that litigant may not yet have chosen to
represent herself; she is suddenly and (often) involuntarily
unrepresented. It is a moment of potentially great confusion and
uncertainty for litigants, and it is a moment at which courts’
leniency toward pro se litigants should be near its zenith. See
Noor v. State, 2019 UT 3, ¶ 57, 435 P.3d 221 (stating that courts
should be “lenient to pro se litigants because of their lack of
knowledge of law and procedure,” and should “grant pro se
litigants every consideration that may reasonably be indulged”
(quotation simplified)). It is not difficult to envision situations in
which a poorly drafted notice to appear or appoint could lead to
excusable neglect on the part of the newly pro se party.

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B

¶21 To meet the third requirement, Hagel must “allege[] a
meritorious defense.” Menzies, 2006 UT 81, ¶ 64. This
requirement exists in order to “prevent the necessity of judicial
review of questions which, on the face of the pleadings, are
frivolous,” id. ¶ 108 (quotation simplified), and “ensures that
vacating the judgment will not be an empty exercise or a futile
gesture,” see Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶ 14,
270 P.3d 456. “This requirement does not set an overly
burdensome threshold.” Menzies, 2006 UT 81, ¶ 108. To meet it, a
party need not present evidence supporting the claimed
defenses, but merely must articulate a “clear and specific proffer
of a defense that, if proven, would preclude total or partial
recovery by the claimant.” Judson, 2012 UT 6, ¶ 23 (quotation
simplified). “Even general denials that would allow a litigant to
prevail if proven are sufficient.” Menzies, 2006 UT 81, ¶ 108
(quotation simplified); see also Somer v. Somer, 2020 UT App 93,
¶ 11 n.5 (citing cases, and stating that “proof beyond allegations
stating a claim or defense is unnecessary”).

¶22 Here, Hagel proffers potentially meritorious defenses to
several of the Order’s provisions. First, she contends that her
child support arrearage was only $350, and that the judgment
entered against her for $850 is incorrect. Second, she proffered to
the district court that many of the other facts alleged by Young
in support of his contempt request were inaccurate; for instance,
she proffered that she had never smoked around Child or
harassed Young’s spouse. Third, she proffered that Young’s
request that all of her parent-time occur in Utah would be
unduly burdensome and inappropriate. In the context of a
custody and contempt dispute, these denials are sufficient under
the Menzies standard. While Young argues on appeal that Hagel
“provided no details” supporting her defense and “failed to
prove facts that would preclude the relief granted” to Young,
definitive proof is not required. Under the circumstances, we
conclude that Hagel has alleged defenses to much of the Order

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that, if proven, would result in significant portions of the Order
being improvident. Thus, Hagel has met the third requirement.

CONCLUSION

¶23 Hagel meets all three of the requirements for relief under
rule 60(b). Accordingly, the district court abused its discretion by
denying her motion to set aside the Order. We therefore reverse
the court’s denial of Hagel’s rule 60(b) motion, vacate the Order,
and remand for further proceedings consistent with this opinion.

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