2015 UT App 67

THE UTAH COURT OF APPEALS

TIFFANY BEGUM,

Petitioner and Appellant,

v.

ANTHONY BEGUM,

Respondent and Appellee.

Memorandum Decision

No. 20130323-CA

Filed March 19, 2015

Third District Court, Salt Lake Department

The Honorable L.A. Dever

No. 084903467

Grant W.P. Morrison and Matthew G. Morrison, 

Attorneys for Appellant

Terry R. Spencer, Attorney for Appellee

JUDGE JOHN A. PEARCE authored this Memorandum Decision, in 

which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

concurred.

PEARCE, Judge:

¶1 Tiffany Begum (Wife) appeals from the district court’s 

final judgment in the divorce action between herself and 

Anthony Begum (Husband). We affirm.

¶2 Husband and Wife married in 1989. Wife petitioned for a 

divorce in August 2008. A domestic relations commissioner 

issued temporary orders granting physical custody of the 

parties’ minor children to Wife. The commissioner ordered 

Husband to make monthly child support payments of $1,996 and 

monthly spousal support payments of $3,600.
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¶3 The district court conducted a two-day trial in November 

and December 2009. After trial, the district court issued findings 

of fact and conclusions of law awarding Wife physical custody 

of the minor children. The district court ordered Husband to pay 

monthly child support of $1,996, monthly alimony of $2,546, and 

a spousal support arrearage exceeding $30,000. The district court 

reserved the issue of property division because the parties’ two 

primary assets—a house and a Nevada motel—were subject to a 

pending bankruptcy proceeding.

¶4 Both parties filed post-decree motions. In June 2010, 

Husband filed a motion to set aside the divorce decree pursuant 

to rule 60(b) of the Utah Rules of Civil Procedure. Husband’s 

rule 60(b) motion argued that newly discovered evidence 

demonstrated that Wife had committed fraud on the court by, 

among other things, representing that she resided with the 

minor children in Utah when in fact she spent half her time 

residing in Nevada without the children. 

¶5 The commissioner heard the pending motions and 

recommended that the district court grant Husband’s rule 60(b) 

motion on the issue of physical custody of the children. The 

commissioner expressly couched his oral ruling on the rule 60(b) 

motion in terms of a recommendation, stating, ‚I will 

recommend that [the physical custody] provision be set aside.‛ 

Husband’s counsel prepared an order based on the 

commissioner’s recommendation. 

¶6 The proposed order stated, ‚The previously entered 

Decree of Divorce is set aside so far as it awards [Wife] the 

custody of the parties’ minor children. This issue, along with all 

related financial support issues, shall be litigated before [the 

district court+.‛ After amending the order to partially 

accommodate Wife’s objections on an unrelated issue, the 

commissioner approved the proposed order. The district court 

signed the order later that same day.
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¶7 The district court conducted a second trial on August 16, 

2011, at the conclusion of which it took all pending issues under 

advisement. After trial, Husband purported to place additional 

evidence before the court by attaching it to documents captioned 

‚Notice of Lodging.‛1 Wife objected to these lodgings. The 

district court scheduled a status hearing for January 3, 2012, but 

rescheduled it to February 21, 2012, at Wife’s request. By this 

time, Wife had expressed dissatisfaction with her trial counsel 

and was seeking new representation.

¶8 Wife’s trial counsel attended the February 21 hearing, but 

Wife, who had been informed of the hearing date, did not. At the 

hearing, the district court reduced Husband’s child support 

obligation to reflect that only one minor child was actually living 

with Wife. The district court also terminated alimony based on 

its finding that Husband had presented unrebutted evidence of 

Wife’s cohabitation. See Utah Code Ann. § 30-3-5(10) (LexisNexis 

2013) (providing that an alimony award ‚terminates upon 

establishment by the party paying alimony that the former 

spouse is cohabitating with another person‛). The district court 

stated on the record that Wife would be allowed to present 

further evidence if she wished. The district court also granted 

Wife’s counsel leave to withdraw from his representation.

¶9 Husband’s counsel drafted a proposed Amended Decree 

and delivered it both to Wife’s trial counsel and to Wife 

personally. The proposed Amended Decree did not, however, 

include the district court’s invitation to Wife to submit 

additional evidence. The district court signed the proposed 

Amended Decree on February 21—the same day as the status 

hearing.

 

1. Throughout their briefs, the parties refer to these filings as 

‚lodgings.‛ We keep that nomenclature.
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¶10 Wife filed a timely notice of appeal from the Amended 

Decree. Two of her arguments on appeal challenge the district 

court’s 2010 decision to set aside the original divorce decree. Her 

remaining arguments focus on the district court’s handling of 

the February 21, 2012 status hearing and the resulting Amended 

Decree. Generally, we review a district court’s domestic-relations 

decisions for abuse of discretion. See Tobler v. Tobler, 2014 UT 

App 239, ¶ 12, 337 P.3d 296 (stating that we review parent-time, 

child support, alimony, and property division decisions for 

abuse of discretion); Trubetzkoy v. Trubetzkoy, 2009 UT App 77, 

¶ 6, 205 P.3d 891 (stating that district courts generally have 

‚considerable discretion‛ in making child custody 

determinations). We review the district court’s interpretation of 

court rules for correctness. See Kartchner v. Kartchner, 2014 UT 

App 195, ¶ 13, 334 P.3d 1 (‚The trial court’s interpretation of the 

rules of civil procedure presents a question of law which we 

review for correctness.‛ (citation and internal quotation marks 

omitted)).

¶11 Wife first argues that, by recommending the district court 

grant Husband’s rule 60(b) motion, the commissioner exceeded 

his authority by setting aside an existing district court order. 

Wife further argues that the district court’s subsequent 

acceptance of the commissioner’s recommendation did not 

‚rectify the improper delegation of a core function of the district 

court.‛ We see no error arising from the commissioner’s 

participation in the district court’s resolution of Husband’s rule 

60(b) motion.

¶12 Pursuant to rule 6-401(2)(D) of the Utah Rules of Judicial 

Administration, domestic relations commissioners are 

authorized to ‚*m+ake recommendations to the court regarding 

any issue, including a recommendation for entry of final 
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judgment.‛ Utah R. Jud. Admin. 6-401(2)(D).2 Wife argues that 

this broad authority is limited by rule 6-401(4)(A), which 

provides that commissioners ‚shall not make final 

adjudications.‛ Id. R. 6-401(4)(A). Wife argues that a 

commissioner’s recommendation to modify or set aside an 

existing court order necessarily conflicts with rule 6-401(4)(A) 

because, under the Utah Rules of Civil Procedure, ‚*a+ 

recommendation of a court commissioner is the order of the 

court until modified by the court.‛ Utah R. Civ. P. 108(a). Wife 

therefore concludes that in cases where a commissioner’s 

recommendation would modify an existing court order, the 

commissioner’s only permissible course of action is to certify the 

matter to the district court. See Utah R. Jud. Admin. 6-401(3)(B) 

(requiring commissioners to ‚*c+ertify those cases directly to the 

district court that appear to require a hearing before the district 

court judge‛).

¶13 We disagree with Wife’s reading of the rules. Even when 

a commissioner’s recommendation acts to temporarily modify 

an existing order, it is not a prohibited ‚final adjudication*+,‛ 

because district court action on the matter is still pending. See id.

R. 6-401(4)(A); Johnson v. Johnson, 2007 UT App 113U, para. 3 (per 

curiam) (‚Clearly, the final adjudication in this case was entered 

by the district court when it denied Wife’s objection to the 

commissioner’s recommendation.‛); cf. Huish v. Munro, 2004 UT 

App 76U, para. 2 (per curiam) (‚*T+he commissioner’s 

recommendation is not [an appealable] final order entered by the 

district court.‛). Here, the commissioner’s recommendation 

anticipated further district court action, which in fact occurred. 

We see no conflict between the commissioner’s recommendation 

and rule 6-401(4)(A).

 

2. Wife acknowledges that, at least on its face, this language 

‚appears to allow *commissioners+ somewhat unfettered 

authority‛ to make recommendations in domestic cases.
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¶14 Even if the commissioner had exceeded his authority by 

making the recommendation, that overreach would not impact 

the validity of the district court’s own order granting Husband’s 

motion for relief under rule 60(b) of the Utah Rules of Civil 

Procedure. Wife relies on Holm v. Smilowitz, 840 P.2d 157 (Utah 

Ct. App. 1992), for the proposition that a district court may not 

ratify a commissioner’s exercise of judicial power when the 

district court ‚did not have the authority to delegate away [its]

judicial power to *the commissioner+ in the first place.‛ Id. at 168. 

However, the commissioner in Holm did much more than issue a 

recommendation on a rule 60(b) motion. In Holm, the 

commissioner

exceeded her authority by attempting to exercise 

ultimate judicial power in: (1) deciding Holm’s 

motion for Utah to assume jurisdiction; (2) 

informing Holm’s attorney that it was her order 

that [an] Ohio change of custody order be enforced 

that night; (3) ordering the police to enforce the 

undomesticated Ohio order; and (4) denying 

Holm’s attorney’s request for a hearing before the 

court with regard to the undomesticated Ohio 

order.

Id. (emphasis omitted).

¶15 Here, the commissioner’s recommendation did not usurp 

judicial authority but rather was an exercise of the authority 

Utah’s court rules provide. Compare Utah R. Jud. Admin. 6-401(1) 

(providing that ‚*a+ll domestic relations matters,‛ including 

‚petitions to modify divorce decrees . . . and all other 

applications for relief,‛ may be referred to a commissioner), with

Utah R. Civ. P. 101(j) (omitting rule 60(b) motions from a list of 

motions that ‚shall be [made] to the judge to whom the case is 

assigned‛). The commissioner never purported to exercise the 

judicial authority to grant Husband’s motion. The order the 

commissioner signed explicitly stated that the commissioner was
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20130323-CA 7 2015 UT App 67

approving the order as to form, and the order’s signature line 

was reserved for the district court. Further, unlike in Holm, the 

commissioner did not order police to enforce his 

recommendation, nor did he suggest that the district court could 

not rehear the rule 60(b) issue. For these reasons, Holm did not 

preclude the district court from accepting the commissioner’s 

recommendation in this case.

¶16 Wife next argues that the district court’s ruling on 

Husband’s rule 60(b) motion was erroneous on its merits. 

Husband sought rule 60(b) relief based on newly discovered 

evidence and alleged fraud on the court. Husband alleged that 

Wife had lied about the amount of time she spent living with the 

children. Husband also alleged the Wife had hired a hit man to 

kill him. Wife argues that this was not newly discovered 

evidence warranting relief from judgment under rule 60(b) 

because it was either ‚‘discoverable with reasonable diligence 

prior to the conclusion of trial’‛ or ‚‘of such suspect credibility 

as to make a different result on retrial unlikely.’‛ (Quoting State 

v. Pinder, 2005 UT 15, ¶¶ 65, 70, 114 P.3d 551.) Wife also argues 

that Husband’s new evidence would have been limited to use for 

impeachment purposes.

¶17 The district court has ‚broad discretion‛ in ruling on rule 

60(b) motions ‚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.‛ Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198. The 

outcomes of rule 60(b) motions ‚are rarely vulnerable to attack.‛ 

Id. Wife has not persuaded us that this is the rare case when the 

district court’s ruling on a rule 60(b) motion must be overturned. 

The district court disagreed with Wife’s arguments that 

Husband’s new evidence was of limited value and credibility 

and that the evidence could have been uncovered earlier with a 

little elbow grease. We will not disturb the court’s decision to 

exercise its broad discretion and grant Husband’s rule 60(b) 

motion.
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20130323-CA 8 2015 UT App 67

¶18 Wife’s remaining arguments challenge various aspects of 

the February 21, 2012 status hearing and Amended Decree. Wife 

argues that the district court erred by accepting additional 

evidence after trial, referring to three lodgings Husband made 

after the second trial but before the status hearing. She contends 

that the district court’s handling of those lodgings violated rule 

43 of the Utah Rules of Civil Procedure, which generally 

provides for witness testimony at trial to be given orally in open 

court. See Utah R. Civ. P. 43(a) (‚In all trials, the testimony of 

witnesses shall be taken orally in open court, unless otherwise 

provided by these rules, the Utah Rules of Evidence, or a statute 

of this state.‛). Wife also contends that the district court erred by 

admitting the ‚hearsay documents . . . without allowing [Wife] 

to cross examine as to the documents.‛

¶19 The district court has ‚broad discretion to admit or 

exclude evidence,‛ Malloy v. Malloy, 2012 UT App 294, ¶ 7, 288 

P.3d 597 (citation and internal quotation marks omitted), and ‚to 

manage the cases before it,‛ Tobler v. Tobler, 2014 UT App 239, 

¶ 12, 337 P.3d 296. We are not persuaded by Wife’s argument 

that rule 43(a), which governs ‚the testimony of witnesses‛ at 

trial, constitutes a blanket limitation on the court’s discretion to 

allow post-trial supplementation of the evidence in appropriate 

circumstances. Rather, it is Wife’s burden on appeal to 

demonstrate both error and prejudice resulting from the district 

court’s consideration of the particular evidence contained in 

Husband’s lodgings. See R.B. v. L.B., 2014 UT App 270, ¶ 39, 339 

P.3d 137.

¶20 Wife does not fully develop her arguments, but we are 

sympathetic to her assertions that Husband’s lodgings may have 

contained inadmissible hearsay, that the lodgings implicated 

Wife’s right to conduct cross-examination, and that the district 

court therefore erred in considering them. However, to obtain 

relief on appeal, Wife must show ‚a reasonable likelihood that a 

different result would have been reached absent the [alleged] 

error.‛ Id. (citation and internal quotation marks omitted). 
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20130323-CA 9 2015 UT App 67

¶21 The Amended Decree made two substantive changes to 

the original decree: it terminated Wife’s alimony based on a 

finding that she was cohabiting, and it reduced Husband’s child 

support obligation based on a finding that only one minor child 

continued to reside with Wife. Wife makes no effort to 

demonstrate how Husband’s post-trial lodgings altered the 

evidentiary picture on those issues. Wife’s obligation to explain 

the effect of Husband’s lodgings assumes greater importance 

because the district court had yet to rule on the issues presented 

at the August 2011 trial. Wife, in essence, asks this court to

independently review the evidence presented at trial, compare it 

to the lodgings, and conclude that the lodgings must have led 

the district court to a different result than would have been 

reached without them. It is Wife’s responsibility, not this court’s, 

to develop and present arguments. Wife has not demonstrated 

that Husband’s lodgings had any effect on the district court’s 

ultimate ruling that Wife had been cohabiting and that only one 

minor child remained in her care, and she has therefore not 

established the prejudice that she must show in order to obtain 

relief on appeal.

¶22 Finally, Wife argues that the district court’s Amended 

Decree violated rule 7(f)(2) of the Utah Rules of Civil Procedure 

in two different ways. She argues that the district court erred 

when it signed the Amended Decree without awaiting the 

expiration of the circulation and objection period rule 7(f)(2) 

requires. See Utah R. Civ. P. 7(f)(2) (outlining the service and 

objection-period requirements for orders prepared by prevailing 

parties). She also argues that the Amended Decree was not in 

‚conformity‛ with the district court’s oral rulings, because it did 

not indicate that Wife could present further evidence on the 

cohabitation issue. See id. (requiring certain prevailing parties to 

prepare ‚a proposed order in conformity with the court’s 

decision‛).

¶23 Rule 7(f)(2) does not limit the district court’s discretion to 

enter judgments and orders. See Henshaw v. Estate of King, 2007 
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20130323-CA 10 2015 UT App 67

UT App 378, ¶ 25, 173 P.3d 876. ‚To the contrary, Utah case law 

indicates that the rules pertaining to the entry of proposed 

judgments and orders are binding only on the litigants and not 

on the trial court.‛ Id. In particular, rule 7(f)(2) ‚places no 

restrictions on when a trial court may sign a proposed judgment 

or order.‛ Id. Because rule 7(f)(2) governs the actions of litigants 

and not those of the district court, the district court’s election to 

execute the Amended Decree on the same day as the status 

hearing does not violate the requirements of that rule. 

¶24 Although the district court is not directly bound by rule 

7(f)(2), the failure to allow an adequate objection period can 

constitute an abuse of discretion. See Midland Funding LLC v. 

Sotolongo, 2014 UT App 95, ¶¶ 36–39, 325 P.3d 871. Here, 

however, Wife does not argue that the district court’s execution 

of the Amended Decree without allowing an objection period

was an abuse of discretion independent of the alleged violation 

of rule 7(f)(2). As Wife has not raised this issue on appeal, we 

will not consider it. See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 

903.

¶25 Wife suggests that the district court violated her due 

process rights by failing to indicate in the Amended Decree that 

she could submit additional evidence. However, Wife was 

represented by counsel at the status hearing where the ruling 

was announced, and she was therefore charged with notice of it. 

See Von Hake v. Thomas, 858 P.2d 193, 194 n.3 (Utah Ct. App. 

1993) (‚*A+n attorney is the agent of the client and knowledge of 

any material fact possessed by the attorney is imputed to the 

client.‛), cert. granted, 868 P.2d 95 (Utah 1993), remanded to 881 

P.2d 895 (Utah Ct. App. 1994); cf. D’Aston v. D’Aston, 790 P.2d 

590, 592 (Utah Ct. App. 1990) (stating that where a party has 

initially been served in a case and has appeared by counsel, 

service of an order to show cause on the party’s attorney is 

sufficient).
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20130323-CA 11 2015 UT App 67

¶26 Further, upon her discovery of the district court’s offer to 

hear additional evidence from her, Wife appears to have made 

no attempt to take the district court up on that offer. Nor has 

Wife explained what evidence she was allegedly precluded from 

presenting or how it would have made a difference. Cf. Salt Lake 

City v. Almansor, 2014 UT App 88, ¶ 11, 325 P.3d 847 (explaining 

that to demonstrate that the failure to allow an opportunity to 

present additional evidence was harmful, an appellant must 

address the anticipated content of that evidence and 

demonstrate how it would have supported her position); Lucas v. 

Murray City Civil Serv. Comm’n, 949 P.2d 746, 755 (Utah Ct. App. 

1997) (stating that in order to establish a due process violation, 

an employee must explain how the alleged ‚procedural errors 

were harmful‛). Under these circumstances, Wife has not 

established a due process violation that would warrant 

disturbing the Amended Decree. Cf. Nelson v. Jacobsen, 669 P.2d 

1207, 1213 (Utah 1983) (‚*T+he demands of due process rest on 

the concept of basic fairness of procedure and demand a 

procedure appropriate to the case and just to the parties 

involved.‛ (citation and internal quotation marks omitted)).

¶27 Wife has not demonstrated any legal error or abuse of 

discretion by either the commissioner or the district court. We 

therefore affirm the Amended Decree. We grant Husband’s 

request for attorney fees on appeal because he was awarded 

such fees below and has prevailed on appeal. See Dahl v. Dahl, 

2015 UT 23, ¶ 209 (‚Generally, when the trial court awards fees 

in a domestic action to the party who then substantially prevails 

on appeal, fees will also be awarded to that party on appeal.‛ 

(citation and internal quotation marks omitted)). We remand this 

matter for the district court to determine the amount of that fee 

award.