Horne v. Horne

2022 UT App 54
THE UTAH C OURT OF APPEALS
R EBECCA A. HORNE,
Appellee,
v.
TODD D. H ORNE,
Appellant.
Opinion
No. 20200845-CA
Filed April 28, 2022
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 194905732
Mary C. Corporon and Kristen C. Kiburtz, Attorneys
for Appellant
Marco C. Brown and A. Leilani Whitmer, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES DIANA HAGEN and R YAN D. TENNEY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Todd D. Horne appeals the district court’s denial of his
motion to set aside the stipulated decree of divorce entered in his
divorce from Rebecca A. Horne. Because we determine that Todd
did not preserve the challenge he raises on appeal, we affirm.
BACKGROUND
¶2 	Todd and Rebecca were married in 2014 and have one child
together. Rebecca is a lawyer and initiated divorce proceedings
based on allegations that Todd sexually assaulted her while she

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was sleeping. According to Rebecca, Todd admitted to her that he
had done this on several occasions.
¶3 	According to Todd, between June and September 2019, as
the 	parties 	were 	contemplating 	divorce, 	Rebecca 	told 	him
“multiple times that she intended to report him to authorities and
that he would be charged criminally for felony sexual assault, that
his name would be listed on the sex offender’s registry, that he
would lose his job and his reputation along with it, and that he
would go to jail or prison . . . if he contested at all what she wrote
in 	the 	divorce 	documents.” 	Rebecca 	filed 	for 	divorce 	on
September 27, 2019. Todd hired an attorney on October 15, and
that 	day, 	the 	attorney 	filed 	an 	appearance 	with 	the 	court.
According to Todd, Rebecca was “livid” when she learned he had
hired an attorney. That same day, Rebecca filed a police report
alleging that Todd had sexually assaulted her. According to Todd,
Rebecca then “pressured him to sign” the divorce settlement she
had drafted and to discharge his attorney. Todd complied.
Rebecca then informed the police that she “no longer wish[ed] to
pursue criminal charges” and requested that they close the case.
The final decree of divorce was signed in November.
¶4 	Seven months later, in June 2020, Todd filed a motion in
district court to set aside the divorce decree pursuant to rule
60(b)(6) of the Utah Rules of Civil Procedure. The grounds Todd
asserted as a basis for setting aside the decree were that Rebecca
“extort[ed] 	and 	blackmail[ed]” 	him 	“until 	he 	signed 	the
stipulation, by advising him that she would make and pursue a
false police report against him.” He asserted that he agreed to the
stipulation only as a result of this “duress” and that the resulting
orders in the decree of divorce “as to child custody and as to
property division, child support, and alimony were grossly
unjust.”
¶5 	The district court denied Todd’s motion after determining
it was untimely under rule 60(b). Although Todd’s motion had

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20200845-CA 	3 	2022 UT App 54
relied on rule 60(b)(6)—“any other reason that justifies relief”—
which requires that the motion be filed “within a reasonable
time,” the court determined that the reasons Todd actually
asserted 	to 	justify 	setting 	aside 	the 	decree 	fell 	under 	rule
60(b)(3)—“fraud . . . , misrepresentation or other misconduct of an
opposing party”—which requires that the motion be filed “not
more than 90 days after entry of the judgment or order.” Utah R.
Civ. P. 60(b)–(c). Accordingly, because Todd filed his motion
more than ninety days after entry of the decree of divorce, the
court declined to set it aside. Todd now appeals.
ISSUE AND STANDARD OF REVIEW
¶6 	Todd argues that the district court should have determined
that his motion was based on rule 60(b)(6) of the Utah Rules of
Civil Procedure rather than rule 60(b)(3) because the court’s
failure to weigh the equities of the stipulation was an independent
ground for relief. “A district court’s determination that a motion
is a rule [60(b)(3)] motion rather than a rule 60(b)(6) motion is a
conclusion of law, which we review for correctness.” Yknot Global
Ltd. v. Stellia Ltd., 2016 UT App 132, ¶ 13, 379 P.3d 36. However,
“[w]e generally do not address unpreserved arguments raised for
the first time on appeal.” Gowe v. Intermountain Healthcare, Inc.,
2015 UT App 105, ¶ 7, 356 P.3d 683.
ANALYSIS
¶7 	Rule 60(b) of the Utah Rules of Civil Procedure allows a
party to be relieved of a judgment for several different reasons.
See Utah R. Civ. P. 60(b). Subsection six of the rule provides that a
party may be relieved from a judgment for “any other reason that
justifies relief” from the operation of the judgment. Our supreme
court has explained that this “catch-all” provision of rule 60(b) “is
meant to operate as a residuary clause.” Menzies v. Galetka, 2006
UT 81, ¶ 71, 150 P.3d 480 (quotation simplified). Because rule

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60(b)(6) permits a court to relieve a party from judgment only if
the party alleges “any other reason justifying relief from the
operation of the judgment,” it “may not be relied upon if the
asserted grounds for relief fall within any other subsection of rule
60(b).” Id. (quotation simplified); see also id. (“[T]he grounds for
relief under 60(b)(6) are exclusive of the grounds for relief allowed
under other subsections.”). In fact, rule 60(b)(6) is to be “sparingly
invoked 	and 	used 	only 	in 	unusual 	and 	exceptional
circumstances.” Id. (quotation simplified). A movant may not
“circumvent[] the time limit applicable to motions based on
reasons listed in subparagraphs (1), (2), and (3) by repackaging
the claim as one under subparagraph (6).” Thompson v. Wardley
Corp., 2016 UT App 197, ¶ 18, 382 P.3d 682.
¶8 	To the district court, Todd argued that he was “coerced
under 	duress 	and 	extorted 	into 	signing 	the 	settlement
documents” and that this “duress” provided a basis under rule
60(b)(6) to be relieved of the custody and property division
provisions in the decree. As noted, the district court rejected
Todd’s argument and determined that duress fell under rule
60(b)(3). See Utah R. Civ. P. 60(b)(3) (identifying “fraud . . . ,
misrepresentation or other misconduct of an opposing party” as
a ground supporting a motion to set aside). In other words, his
“motion, though ostensibly based on subparagraph (6), was in
substance 	merely 	a 	repackaged 	motion 	for 	relief 	under
subparagraph (3).” See Thompson, 2016 UT App 197, ¶ 18. Todd
does not renew his argument that duress falls under rule 60(b)(6).
¶9 	Instead on appeal, Todd argues that although Rebecca’s
alleged fraud and duress justified setting the decree aside, he also
alleged an “independent ground” under rule 60(b)(6), not fully
considered by the district court, that would have allowed relief
from the decree: that because “the District Court did not comply
with its non-discretionary statutory obligation to consider the best
interests of the child and the reasonableness and fairness of the
property distribution” in signing the stipulated decree, the decree

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should be set aside. See Utah Code Ann. § 30-3-5(1) (LexisNexis
2019) (outlining the court’s discretion to make “equitable orders
relating to the children, property, debts or obligations, and
parties” in a decree of divorce); id. § 30-3-10(2) (outlining the
court’s responsibility to “consider the best interest of the child” in
determining 	custody 	and 	parent-time). 	Rebecca, 	however,
contends that Todd did not raise this specific argument below and
it was therefore not preserved for appellate review. We agree.
¶10 	This court’s preservation requirement is well-settled. “An
issue is preserved for appeal when it has been presented to the
district court in such a way that the court has an opportunity to
rule on that issue.” Wolferts v. Wolferts, 2013 UT App 235, ¶ 19, 315
P.3d 448. “To provide the court with this opportunity, the issue
must be specifically raised by the party asserting error, in a timely
manner, and must be supported by evidence and relevant legal
authority.” Id. (quotation simplified).
¶11 	Here, the district court was not given the opportunity to
rule on the argument Todd now asserts on appeal—that before
entering the stipulated decree of divorce, the court failed to
exercise its duty to independently assess whether the parties’
stipulation was equitable and provided for the best interests of the
child. While Todd did assert below that the custody award was
inequitable and not in the child’s best interests, these assertions
were framed as the undesirable results of Rebecca’s duress, not as
an independent ground for relief under rule 60(b)(6). Todd did
not assert, as he now does, that the district court erred in accepting
the stipulation without ensuring it was fair and in the best
interests of the child. In fact, so far as we can tell, Todd made no
mention of district court error, focusing his arguments entirely on
Rebecca’s actions.
¶12 	In his reply memorandum on the motion to set aside, Todd
vaguely stated that “the underlying order represents an extreme
departure from the legal norm not otherwise supported by

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findings as to why such should be the case.” But “a party may not
claim to have preserved an issue for appeal by merely mentioning
an issue without introducing supporting evidence or relevant
legal authority.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366
(quotation simplified). This statement—and similar statements
peppered throughout his pleadings below—was not specific
enough to alert the district court that it needed to consider the
court’s own entry of an allegedly inequitable decree as a basis to
set aside. In that same reply, Todd broadly discussed a variety of
cases where courts had considered grounds to fall under rule
60(b)(6). 	His 	discussion 	included 	general 	assertions 	about
fairness, but he never clearly articulated the impact of fairness on
the rule 60(b)(6) inquiry. Todd never focused on a specific
“independent ground” as a basis to set aside the decree but
instead attempted to analogize different aspects of his case to
aspects of other cases where rule 60(b)(6) was invoked. To the
extent that fairness was discussed, the concept was used to urge
the court to be flexible and liberal in granting relief under rule
60(b) and to show that Todd had a meritorious defense as
required to prevail under rule 60(b). The arguments about fairness
were never articulated in such a way that the court would have
understood Todd was asserting that the district court’s own
alleged 	error 	in 	accepting 	an 	unfair 	stipulation 	was 	an
independent ground for relief.
¶13 	Additionally, Todd did not support the argument with
“evidence and relevant legal authority.” See Wolferts, 2013 UT
App 235, ¶ 19 (quotation simplified). He did not engage in any
discussion of the parameters of the court’s obligation to examine
a stipulation for fairness or the best interests of the child before
adopting its provisions in a decree of divorce. Instead, he asserted
that the provisions were unfair as a result of the duress to which
he was subjected. Indeed, the primary argument on which Todd
focused the district court’s attention was that the decree of divorce
should be set aside because it was the result of “duress and
blackmail” 	and 	that 	duress 	should 	fall 	under 	the 	catchall

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provision of rule 60(b)(6) rather than the fraud, misrepresentation,
or other misconduct provision of rule 60(b)(3).
¶14 	Moreover, it is apparent that the district court did not, in
fact, understand Todd to be making the argument he now makes
on appeal. Cf. Pratt, 2007 UT 41, ¶ 24 (concluding that even though
an argument was untimely and the court did not have the benefit
of the other party’s response, it was “preserved for appeal when
the district court was given notice of the issue . . . and when the
court in response to such notice made a specific ruling on the
issue” (emphasis added)). Instead, the court construed Todd’s
arguments about unfairness as a response to Rebecca’s assertion
that he lacked a meritorious defense and discussed concerns
about unfairness only in the context of addressing that issue.1
¶15 	In short, simply expressing concerns about the fairness of
the decree of divorce and whether it provided for the child’s best
interests did not present the “independent ground” of district
court error in such a way that the district court had an opportunity
to rule on whether any alleged court error justified setting aside
the parties’ decree of divorce. See Wolferts, 2013 UT App 235, ¶ 19.
Accordingly, the question of whether that independent ground
could support a motion to set aside under rule 60(b)(6) is not
preserved for our review.2
1. In addition to asserting that Todd’s motion was untimely,
Rebecca argued that he lacked a meritorious defense because he
could not prove that the terms of the settlement were unfair.
2. Todd does not assert that any exception to our preservation rule
applies to his argument. See generally State v. Johnson, 2017 UT 76,
¶ 47, 416 P.3d 443 (“When an issue has not been preserved in the
trial court, but the parties argue that issue on appeal, the parties
must argue an exception to preservation for the issue to be
reached on its merits.”).

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CONCLUSION
¶16 	Because Todd has not preserved the argument he raises on
appeal and has not argued that any exception to the preservation
rule applies in this case, we decline to review it. We therefore
affirm the district court’s determination that the grounds for
Todd’s motion to set aside fell under rule 60(b)(3) of the Utah
Rules of Civil Procedure and that his motion was therefore
untimely.