Mitchell v. Mitchell

¶1Defendant appeals from a post-divorce order of the district court of Weber County, Utah, which placed a lis pendens and a conservatorship on certain real property situate in Davis County, Utah.

¶2Plaintiff and defendant were divorced in 1976. The decree of divorce provided for, inter alia, an equitable distribution of property. Subsequently, on September 13,1977, the court modified the decree to include a judgment in favor of plaintiff and against defendant in the sum of $20,000. In June of 1978, defendant sought and obtained an Order to Show Cause seeking a change in child custody and the same was set for hearing on August 31, 1978. On or about August 15, 1978, counsel for defendant withdrew, based upon word from defendant that he had left the state (with the minor children of the parties) and no longer required the services of an attorney. This prompted plaintiff to seek ex parte relief in the form of a lis pendens and conservator-ship to insure the return of the minor children, payment of future child support, and the $20,000 judgment.

¶3Pursuant to plaintiff’s affidavit and motion, the court, on August 17, 1978, entered a temporary order authorizing lis pendens and conservatorship, but scheduled the matter for further hearing on August 31, 1978, the day previously scheduled for the hearing of defendant’s motion as to child custody. When defendant failed to appear in person, or by counsel, the court made permanent its order of lis pendens and conser-vatorship and accordingly signed its written order dated September 15, 1978. Promptly thereafter, defendant appeared by counsel who sought and obtained a hearing for “reconsideration” of the order.1 The matter was thereupon reviewed by the court and *375defendant was afforded full opportunity to be heard. The court declined to alter its prior order, hence this appeal.

¶4Defendant raises only two basic points on appeal: (1) he challenges the propriety of lis pendens and conservatorship; and (2) he asserts that in granting such relief ex parte the court denied him due process.

¶5We observe that plaintiff’s brief makes reference to a quit-claim deed2 which purportedly conveyed the Davis County realty to defendant’s brother. The deed itself is not part of the record and its legal significance, if any it has, was not determined by the court below.3 In any event, defendant does not urge its validity upon this appeal. In fact, he makes no mention of it whatsoever, either in his brief or by way of oral argument. Consequently, we do not treat it as an issue here.

¶6However improvident it may have been for plaintiff to seek, and for the court to authorize, the use of ¡is pendens,4 we are not persuaded it constitutes reversible error in this case.

¶7Plaintiff’s $20,000 judgment became a lien upon any and all of defendant’s interests in real property in Weber County, and had plaintiff seen fit to docket a transcript of said judgment in Davis County she could have perfected a similar lien on the property in question.5 Thus it is to be seen that plaintiff had a far more effective remedy available to her than that of lis pendens, and in the absence of a showing that defendant was prejudiced by its use, the highly equitable nature of this proceeding prompts affirmance of the trial court’s action.

¶8In regard to the order establishing a conservatorship of the Davis County realty, its propriety is to be viewed in light of the plaintiff’s obvious need of further assistance from the court. Defendant was in apparent violation of the prior orders of the court in that he had failed to meet his child support obligation; had deprived plaintiff of custody of the minor children by removing them from the jurisdiction; and had apparently left the Davis County rental property unattended and subject to waste. Given those circumstances, we deem the action of the trial court to be well within the bounds of its continuing jurisdiction in such matters.6

¶9Defendant’s claim of lack of notice, and hence a denial of due process, is also without merit for the simple reason that the court had in rem jurisdiction over the property and proceeded to exercise it in the absence of the defendant who had seen fit to keep his whereabouts unknown. Such action is also in all respects consistent with the continuing jurisdiction of the court in domestic matters.7 Furthermore, at the time of the initial order of the court (dated August 17, 1978), an Order to Show Cause previously obtained by defendant was awaiting hearing. As an apparent consequence, said initial order was made temporary only and continued for further hearing on August 31, 1978, the same date set for the hearing of defendant’s Order to Show Cause. When defendant failed to appear in person or by counsel for his own requested hearing, the court made permanent its order of lis pendens and conservatorship and accordingly signed its written order dated September 15, 1978. Promptly thereafter, defendant personally appeared by counsel *376and sought and obtained a hearing for “reconsideration” of the order. The matter was thereupon duly presented to the court and defendant was afforded full opportunity to be heard. The fact that the court did not see fit to alter its prior order, after full hearing, is a proper exercise of discretion and not a deprivation of due process.

¶10Affirmed. Costs awarded to plaintiff.