This opinion is subject to revision before

publication in the Pacific Reporter

2016 UT 53

IN THE

SUPREME COURT OF THE STATE OF UTAH

In the Matter of the Estate of RUFUS C. WILLEY1

___________________________________

DON S. MCBROOM, 

Appellant,

v.

SHAUNA CHILD SCHMUNK, et al.,

2

Appellees.

No. 20150771

Filed November 22, 2016

On Direct Appeal

Second District, Farmington

The Honorable Thomas L. Kay

No. 143700260

Attorneys:

Mark F. James, Mitchell A. Stephens, G. Stephen Long, 

Nicole A. Westbrook, Salt Lake City, for appellant

Alan L. Sullivan, Jared C. Fields, Salt Lake City, for appellees

Shauna Child Schmunk, Nancy Child Evensen, David Child, 

William H. Child, Sheldon Child, Patricia Child, William Steven Child, 

Susan Child Markham, Tamara Child Petersen, and 

Karen Child Ogden, and Michael Child

 

1 This case was consolidated below with In the Matter of the Estate 

and Guardianship of Jacqui Irene Willey, Don S. McBroom, Dirk E. 

McBroom, Shauna D. Child, Nancy Ann Child, and David R. Child.

2 The other appellees in this case are Nancy Child Evensen, David 

Child, William H. Child, Sheldon Child, Patricia Child, William Steven 

Child, Susan Child Markham, Tamara Child Petersen, Karen Child 

Ogden, Michael Child, and KeyBank.
In re Estate of R. C. WILLEY

Opinion of the Court

2

R. Stephen Marshall, Steven M. McCardell, Salt Lake City, 

for appellee KeyBank

JUSTICE HIMONAS authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE PEARCE and JUDGE MORTENSEN joined.

Having been recused, JUSTICE DURHAM does not participate;

COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶ 1 Don McBroom, grandson of Rufus Call Willey, founder of the 

R.C. Willey business enterprise, brought a motion under rule 60(b) of 

the Utah Rules of Civil Procedure asking the Second District Court to 

set aside two orders relating to Mr. McBroom‘s interests in the 

business. The court denied the motion, and this appeal followed.

¶ 2 We affirm. First, properly construed, Mr. McBroom‘s rule 

60(b) motion sought relief under paragraphs (3) and (4), not (6).3

Second, since Mr. McBroom filed his motion some forty years after the 

Second District Court entered its orders, his claims under paragraph 

(b)(3) are profoundly untimely. And third, Mr. McBroom‘s claims 

under paragraph (b)(4) fail on their merits. 

BACKGROUND

¶ 3 In McBroom v. Child, 2016 UT 38, __ P.3d __, we discuss the 

relevant factual history regarding Mr. McBroom‘s claims at length. In 

this opinion, we recite only the relevant procedural history.

¶ 4 Mr. McBroom filed a petition on July 10, 2014, with the 

Second District Court to review his ―Rule 60(b) Motion for Relief from 

Final Judgment and Motion for Relief Based on Fraud on the Court,‖ 

which sought to set aside the Second District Court‘s 1973 order (1973 

Order) approving a stock purchase agreement (1973 Agreement) and 

 

3 Rule 60 was amended effective May 1, 2016, after the principal 

briefs in this matter had been filed. Because the pertinent amendments 

are organizational and stylistic, we cite to the current version of the 

rule. 
Cite as: 2016 UT 53

Opinion of the Court

3

the Second District Court‘s 1975 order (1975 Order) approving the sale 

of Mr. McBroom‘s stock in R.C. Willey & Son. Shortly thereafter, 

members of the Child family—many of whom are relatives of Rufus 

Call Willey—filed a motion to intervene in the proceedings under 

rule 24 of the Utah Rules of Civil Procedure. And on September 22, 

2014, KeyBank filed a motion, which the district court granted, asking 

the court to ―authorize its [c]lerk to acknowledge KeyBank as a party 

and to accept filings by KeyBank in this matter.‖ In its final order, 

dated August 26, 2015, the district court granted the Child family‘s 

motion to intervene in part, denied Mr. McBroom‘s rule 60(b) motion, 

and denied Mr. McBroom‘s motion for relief based on fraud on the 

court.4 We have jurisdiction over Mr. McBroom‘s appeal of this 

decision under Utah Code section 78A-3-102(3)(j). 

STANDARD OF REVIEW

¶ 5 ―[A] district court has broad discretion in ruling on a motion 

to set aside an order or judgment under rule 60(b), and  ̳[t]hus, we 

review a district court‘s denial of a 60(b) motion under an abuse of 

discretion standard.‘‖ Metro. Water Dist. of Salt Lake & Sandy v. Sorf, 

2013 UT 27, ¶ 12, 304 P.3d 824 (second alteration in original) (citation 

omitted). 

ANALYSIS

¶ 6 The district court did not abuse its discretion in denying 

Mr. McBroom‘s rule 60(b) motion. We first classify Mr. McBroom‘s 

claims for relief under the proper paragraphs of rule 60. We conclude 

that Mr. McBroom did not properly file a claim for relief under 

paragraph (b)(6), and instead his claims fall under paragraphs (b)(3) 

and (4). Next we conclude that because Mr. McBroom did not file his

motion under paragraph (b)(3) within ninety days, as prescribed by 

rule 60(c), his claims based on allegations of fraud on the court are 

untimely and we do not consider them. We then proceed to analyze 

Mr. McBroom‘s claims under paragraph (b)(4). And we hold that all of 

 

4 As we explain below, and as the district court correctly observed,

Mr. McBroom‘s motion for relief based on fraud on the court is not an 

independent action and ―must be evaluated under [r]ule 60(b)(3).‖ 

Therefore, throughout this opinion, we treat Mr. McBroom‘s fraud 

motion as having been brought pursuant to rule 60(b)(3). 
In re Estate of R. C. WILLEY

Opinion of the Court

4

his paragraph (b)(4) claims are meritless. As a result, we affirm the 

district court‘s denial of Mr. McBroom‘s rule 60(b) motion.

I. THE PROPER CLASSIFICATION OF MR. MCBROOM‘S 

RULE 60(b) MOTION FOR RELIEF

¶ 7 Rule 60(b) allows a court, ―upon just terms,‖ to ―relieve a 

party or its legal representative from a judgment, order, or proceeding‖ 

for reasons laid out in paragraphs (b)(1) through (6).5 The rule further 

provides that ―[a] motion under paragraph (b) must be filed within a 

reasonable time.‖ UTAH R. CIV. P. 60(c). Moreover, a motion under

paragraph (b)(1), (2), or (3) cannot be filed more than ninety days after 

entry of the judgment or order. Id. Because of these differing times, we 

must determine under what paragraphs Mr. McBroom‘s reasons for 

relief fall. Mr. McBroom claims to have filed for relief under paragraphs 

(b)(4) and (6). We conclude, however, that Mr. McBroom did not 

appropriately file for relief under paragraph (b)(6), and instead his 

claims fall under paragraphs (b)(3) and (4). 

¶ 8 In his filings with the Second District Court, Mr. McBroom 

claimed to seek relief under paragraphs (b)(4) and (6). Mr. McBroom 

made several arguments claiming that the orders from which he is 

seeking relief are void. By the plain language of rule 60, a party seeking 

relief from a judgment or order on the basis that ―the judgment is void‖ 

must press his or her claim under paragraph (b)(4). UTAH R. CIV. P.

60(b)(4). The only other basis upon which Mr. McBroom sought relief 

was fraud on the court. But Mr. McBroom cannot seek relief under rule 

60(b)(6) based on an allegation of fraud on the court. Instead, a motion 

seeking relief from a judgment based upon an allegation of fraud on the 

court necessarily falls under paragraph (b)(3), not paragraph (b)(6). 

¶ 9 Under the plain language of rule 60, a party seeking to be 

relieved from a judgment or order based upon an allegation of fraud on 

the court must do so under paragraph (b)(3). UTAH R. CIV. P. 60(b)

 

5 The reasons are as follows: ―(1) mistake, inadvertence, surprise, or 

excusable neglect; (2) newly discovered evidence which by due 

diligence could not have been discovered in time to move for a new 

trial . . . ; (3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation or other misconduct of an opposing party; (4) the 

judgment is void; (5) the judgment has been satisfied, released, or 

discharged . . . ; or (6) any other reason that justifies relief.‖ UTAH R.

CIV. P. 60(b).
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Opinion of the Court

5

(permitting a court to relieve a party from a judgment when there is 

―fraud . . . , misrepresentation or other misconduct of an opposing 

party‖). Motions under paragraph (b)(6), on the other hand, must be 

based on a reason other than those listed in paragraphs (b)(1) through 

(5). Id. (permitting a court to relieve a party from a judgment for ―any 

other reason that justifies relief‖); see also Richins v. Delbert Chipman & 

Sons Co., 817 P.2d 382, 387 (Utah Ct. App. 1991) (―Relief under 

[paragraph (b)(6)] embodies three requirements:  ̳First[,] that the reason 

be one other than those listed in subdivisions (1) through [(5)]

. . . .‘‖(citation omitted)). Rule 60(b)(6) is a residuary clause; a party may 

not rely upon it if the asserted grounds for relief fall within any other 

paragraph of rule 60(b). See Laub v. S. Cent. Utah Tel. Ass’n, 657 P.2d 

1304, 1306–07 (Utah 1982). As a result, because Mr. McBroom sought 

relief from the Second District Court‘s orders based on an allegation of 

fraud on the court, his motion squarely falls under paragraph (b)(3), not 

paragraph (b)(6). 

¶ 10 Therefore, having properly classified Mr. McBroom‘s rule 

60(b) motion into the proper paragraphs, (b)(3) and (4), we proceed to

determine if Mr. McBroom timely filed his motion, and if so, whether 

the merits of his arguments warrant reversal of the district court‘s 

judgment against him.6

 

6 We note that on appeal Mr. McBroom characterizes his claims that 

―relief is justified because the 1973 Order and the 1975 Order 

irreconcilably conflict with the court‘s 1956 Order‖ and ―relief is 

justified based upon a conflict of interest and self-dealing by the 

administratrix‖ as claims for relief under rule 60(b)(6). But, the district 

court disposed of these claims under rule 60(b)(4) and noted that ―[t]he 

grounds on which Mr. McBroom bases his motion . . . are not 

appropriately raised under [r]ule 60(b)(6).‖ At the district court, 

Mr. McBroom‘s claims for relief based on these grounds sought to set 

aside the court orders on a theory that they made the judgments void. 

By the plain language of rule 60, any claims for relief based on a theory 

that a judgment is void fall under paragraph (b)(4), not paragraph 

(b)(6). UTAH R. CIV. P. 60(b)(4). As a result, we agree with the district 

court that these claims for relief are viewed most appropriately as rule 

60(b)(4) claims and ―are not appropriately raised under [r]ule 60(b)(6).‖ 

Thus, even though Mr. McBroom attempts to characterize these claims 

(cont.)
In re Estate of R. C. WILLEY

Opinion of the Court

6

II. MR. MCBROOM‘S RULE 60(b)(3) MOTION

¶ 11 We hold that Mr. McBroom failed to file his rule 60 motion 

under paragraph (b)(3) within ninety days as required by rule 60(c). As 

a result, we conclude that his rule 60 motion under paragraph (b)(3) is 

untimely and fails.7

¶ 12 Rule 60(c) requires that any motion filed under paragraph (b) 

―be filed within a reasonable time and for reasons in paragraph (b)(1), 

(2), or (3), not more than 90 days after entry of the judgment or order.‖ 

 

on appeal as claims under paragraph (b)(6), we analyze them in the 

context of paragraph (b)(4). 

7 Mr. McBroom makes the following claims, which fall under rule 

60(b)(3): (1) ―fraud on the court justifies relief from the orders obtained 

by fraud,‖ (2) ―the court was deceived that the 1973 Agreement was fair 

to [Mr.] McBroom,‖ (3) ―gross conflicts of interest deceived the court 

into believing [Mr.] McBroom was protected by an attorney and a 

guardian,‖ (4) ―the court was wrongfully led into believing an actuarial 

analysis ensured fairness to [Mr.] McBroom,‖ and (5) ―the only person 

the court heard from or saw was an attorney who fabricated evidence.‖ 

We do not address the merits of any of these claims because, as stated 

above, Mr. McBroom failed to timely file his motion under rule 60(b)(3) 

as required by rule 60(c). 

We also cannot address these claims on a theory that Mr. McBroom 

filed an independent action for relief based on fraud on the court. See 

UTAH R. CIV. P. 60(d) (―This rule does not limit the power of a court to 

entertain an independent action to relieve a party from a judgment, 

order or proceeding to set aside a judgment for fraud upon the court.‖). 

Mr. McBroom clearly filed a motion under rule 60(b) and not an 

independent action for fraud on the court. And although 

―Mr. McBroom‘s moving papers argue[d] that his motion is, in this 

respect, an  ̳independent action‘ within the meaning of . . . [r]ule 60[d],‖ 

like the district court, we ―conclude[] that it is not an independent 

action because it was not asserted in a separate complaint filed with the 

[district court] and served on the parties from whom he seeks relief.‖ 

Additionally, an independent action consists of a complaint and 

service. See Estate of Thompson v. Turner, 690 P.2d 925, 926 (Idaho 1984). 

Mr. McBroom‘s motion did not comply with this requirement. Thus, 

Mr. McBroom‘s claims for relief based on fraud on the court are made 

under rule 60(b)(3) and do not constitute an independent action. 
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Opinion of the Court

7

UTAH R. CIV. P. 60(c). The rule goes on to indicate that the ―rule does 

not limit the power of a court to entertain an independent action to 

relieve a party from a judgment, order or proceeding or to set aside a 

judgment for fraud upon the court.‖ Id. The language of the rule is 

clear; a party must file a rule 60(b) motion within a reasonable time,8

which is within ninety days after a judgment or order is entered, if the 

motion is filed under paragraphs (b)(1), (2), or (3). If a party fails to file 

a motion under paragraphs (b)(1), (2), or (3) within ninety days, then 

the party must file an independent action if it wishes to be relieved of a 

judgment or order based upon fraud on the court. 

¶ 13 In the present case, Mr. McBroom filed his rule 60(b) motion 

under paragraph (b)(3) in 2014, forty-one years after the Second District 

Court entered the 1973 Order and thirty-nine years after the court

entered the 1975 Order. This is decades after the ninety-day limit the 

rule imposes. As a result, we hold that Mr. McBroom‘s rule 60(b) 

motion under paragraph (b)(3) did not comply with the requirements 

of rule 60(c) and is untimely. 

III. MR. MCBROOM‘S RULE 60(b)(4) MOTION

¶ 14 We now proceed to analyze Mr. McBroom‘s claims for relief 

under rule 60(b)(4). We do not make a determination of whether 

Mr. McBroom‘s claims under rule 60(b)(4) are subject to the reasonable 

time limit under rule 60(c). Instead, we evaluate the merits of 

Mr. McBroom‘s claims under rule 60(b)(4) that the Second District 

Court‘s 1973 Order and 1975 Order are void.

¶ 15 Mr. McBroom makes three categories of claims that the 

Second District Court‘s orders are void. First, he argues that the Second 

District Court lacked subject matter jurisdiction. Second, he argues that 

the Second District Court lacked personal jurisdiction over him. Finally, 

he argues that conflicts of interest rendered the Second District Court‘s 

orders void. We hold that all of Mr. McBroom‘s claims for relief on 

these bases fail on their merits. 

 

8 Despite the language of the rule, our case law has held that some 

motions under rule 60(b)(4) are not subject to a reasonable time 

limitation. See, e.g., Garcia v. Garcia, 712 P.2d 288, 290–91 (Utah 1986). 

We discuss the imposition of a reasonable time limit on motions made 

under rule 60(b)(4) infra ¶¶ 17–18.
In re Estate of R. C. WILLEY

Opinion of the Court

8

A. Timeliness of Mr. McBroom’s Rule 60(b)(4) Claims 

¶ 16 It is an unsettled question in Utah whether all claims that 

judgments are void under rule 60(b)(4) are subject to the reasonable 

time limit imposed by rule 60(c). Mr. McBroom argues that the district 

―court erroneously interpreted [r]ule 60(b)(4) and [Mr.] McBroom‘s 

jurisdictional arguments as being limited by [Mr.] McBroom‘s  ̳failure‘ 

to  ̳seek relief ―within a reasonable time.‖‘‖ He couches this claim in his 

assertion that ―[s]ubject matter jurisdiction may not be waived by either 

party and may be raised at any time . . . . Therefore, any challenge to 

the court‘s subject matter jurisdiction is timely.‖ We conclude that 

Mr. McBroom‘s claims regarding timeliness under rule 60(b)(4) pertain 

to an unsettled area of the law in Utah. As a result, we decline to make 

a ruling on this point because the parties do not adequately brief this

issue, because other jurisdictions are split on this issue, and because 

resolution of this issue is not necessary to the disposition of this case. 

¶ 17 Although the language of rule 60(c) states that all motions

under paragraph (b) must be filed within a reasonable time, this court 

has held that ―where the judgment is void because of a fatally defective 

service of process, the time limitations of [r]ule 60(b) have no 

application.‖ Garcia v. Garcia, 712 P.2d 288, 290 (Utah 1986). While 

Garcia and a prior case, Woody v. Rhodes, 461 P.2d 465, 466 (Utah 1969), 

limited their holdings to motions based on a ―fatally defective service 

of process,‖ we recognize that Garcia continued to state, ―there is no 

time limit on an attack on a judgment as void.‖ 712 P.2d at 291 (citation 

omitted). But the language in Garcia advancing the notion that ―the 

requirement that the motion be made within a  ̳reasonable time,‘ . . . 

cannot be enforced with regard to [a rule 60(b)(4)] motion‖ is dicta 

given the clear holding of the case. Id. (citation omitted). Garcia held 

only that ―where the judgment is void because of a fatally defective 

service of process, the time limitations of [r]ule 60(b) have no 

application.‖ Id. at 290 (emphasis added). Therefore, apart from the 

dicta in Garcia, this court has not extended the exemption from the 

reasonable time requirement in rule 60(c) to claims other than those 

based on ―fatally defective service of process.‖

9

Id. 

 

9 Mr. McBroom‘s reliance on Murray Place v. Varela, 2013 UT App 19, 

¶ 3, 297 P.3d 642, is unavailing. The language he cites from Murray 

Place that ―a motion under rule 60(b)(4) may  ̳succeed on the basis of a 

mere showing that the judgment was void because of some defect in 

(cont.)
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Opinion of the Court

9

¶ 18 There is a split among other jurisdictions on whether motions 

made under rule 60(b)(4) are subject to a reasonable time limit. Some 

courts have held that motions made under rule 60(b)(4) are exempt 

from the reasonable time limit found in rule 60, while others have held 

that motions under rule 60(b)(4) are subject to a reasonable time limit. 

Compare McGrew v. McGrew, 82 P.3d 833, 841 (Idaho 2003) (―To obtain 

relief from a void judgment under Rule 60(b)(4) of the Idaho Rules of 

Civil Procedure, a party must bring a motion for such relief within a 

reasonable time.‖), and Tudor’s Biscuit World of Am. v. Critchley, 729 

S.E.2d 231, 238 (W. Va. 2012) (―A movant seeking relief under Rule 

60(b)(4) of the West Virginia Rules of Civil Procedure must show that 

the judgment sought to be vacated is void and that the motion to vacate 

the judgment was filed within a reasonable period of time.‖ (citation 

omitted)), with Carter v. Fenner, 136 F.3d 1000, 1006 (5th Cir. 1998) 

(―Motions brought pursuant to Rule 60(b)(4), however, constitute such 

exceptional circumstances as to relieve litigants from the normal 

standards of timeliness associated with the rule.‖), Ex parte Full Circle 

Distribution, L.L.C., 883 So. 2d 638, 642 (Ala. 2003) (holding ―that the 

reasonable-time limitation is not applicable to actions seeking to set 

aside a void judgment pursuant to Rule 60(b)(4)‖), and Reynaud v. 

Koszela, 473 A.2d 281, 285 (R.I. 1984) (―Thus, Rule 60(b)‘s requirement of 

reasonable time . . . is not applicable to motions based upon Rule 

60(b)(4) . . . .‖). Therefore, whether we should hold motions under rule 

 

the court‘s authority over the case or the parties,‘‖ comes from our 

decision in Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 16, 270 

P.3d 456. In Judson, we were not addressing the question of whether 

motions made under rule 60(b)(4) were subject to a reasonable time 

requirement. Instead, we held that motions under rule 60(b)(4) did not 

have to ―assert[ ] . . . a separate meritorious defense,‖ even though 

―[t]he assertion of a separate meritorious defense is generally . . . 

required in a successful 60(b) motion.‖ Id. ¶ 15. Consequently, our 

pronouncement that ―[a] motion under rule 60(b)(4) . . . could succeed 

on the basis of a mere showing that the judgment was void‖ did not, 

and should not be read to, proclaim that motions under rule 60(b)(4) 

are exempt from the reasonable time requirements of rule 60(c). Id. ¶ 16. 

As stated above, we have never fully addressed that question. Instead, 

the holding in Judson is limited to the general requirement that motions 

under rule 60 must assert a separate meritorious defense. See id. ¶ 14.
In re Estate of R. C. WILLEY

Opinion of the Court

10

60(b)(4) subject to a reasonable time limit is not a simple question with 

a single answer.

¶ 19 In the present case, we determine that it is unnecessary for 

us to resolve whether the reasonable time limit applies to all motions 

made under rule 60(b)(4). The parties have not briefed this particular 

issue, and we are hesitant to make a determination on this point 

without the benefit of such briefing. In addition, the resolution of the 

matter is not necessary for us to resolve this case. The district court, in 

addition to declaring that Mr. McBroom‘s motions were ―untimely,‖ 

also determined that Mr. McBroom‘s claims under rule 60(b)(4) failed 

on their merits. In their briefs, the parties discussed at length the merits 

of Mr. McBroom‘s claims under rule 60(b)(4). Therefore, we may review 

the merits of Mr. McBroom‘s claims under rule 60(b)(4) and make a 

determination on the arguments‘ merits. 

B. Mr. McBroom’s Claims That the Second District Court 

Lacked Subject Matter Jurisdiction

¶ 20 Mr. McBroom makes three claims that the Second District 

Court lacked subject matter jurisdiction to issue the 1973 Order and the 

1975 Order. We reject all three of his claims and determine that the 

Second District Court‘s orders are not void because the court had

subject matter jurisdiction. 

1. Lack of Notice to Mr. McBroom, His Failure to Attend the Second

District Court‘s Proceedings in Person, and His Waiver of Notice

¶ 21 Mr. McBroom first claims that ―the judgment is void because 

the [district] court lacked subject matter jurisdiction when the minor 

child [Mr.] McBroom was not notified of the hearings and did not 

attend court in person.‖ He cites Utah Code section 75-5-405(1) for his 

proposition that ―a minor may not waive notice pursuant to Utah law 

without being physically present before the court,‖ and argues that 

because ―it is undisputed that [Mr.] McBroom was never present before 

the court,‖ the waiver of notice he signed for the guardianship 

proceedings was invalid. He then claims that ―only a parent who has 

 ̳no conflict of interest‘ may waive notice for a minor child,‖ and 

because Betty McBroom, Mr. McBroom‘s mother, had a conflict of 

interest with her son, the waiver of notice that both she and 

Mr. McBroom signed is invalid. In addition, Mr. McBroom claims that 

the waiver of notice he signed was ―expressly limited‖ to the petition 

for and issuance of the guardianship letters to Commercial Security 

Bank and did not waive notice for the proceedings resulting in the 1973 

Order or the proceedings resulting in the 1975 Order.
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Opinion of the Court

11

¶ 22 We first conclude that Mr. McBroom‘s reliance on Utah Code 

section 75-5-405(1) is misplaced. That section is not a provision from the 

1953 Utah Code as Mr. McBroom asserts in his brief. Instead, section 

75-5-405(1) was passed in 1975 and did not take effect until July 1, 1977. 

UTAH CODE § 75-8-101. This is well after the Second District Court 

issued the 1973 Order and the 1975 Order. Nor does the section have 

retroactive effect. Id. (―An act done before the effective date in any 

proceeding and any accrued right is not impaired by this code.‖). 

Regardless, by its terms, section 75-5-405(1) applies only to the 

appointment of a conservator or other protective order. Id. So, even if 

the statute had been effective as of the date of the proceedings 

involving Mr. McBroom, the statute would not have applied. As a 

result, Mr. McBroom‘s claim that he needed to be physically present 

before the court in order to waive notice about the proceedings 

resulting in the 1973 Order and the proceedings resulting in the 1975 

Order is incorrect. 

¶ 23 We also conclude that Mr. McBroom‘s reliance on Utah Code 

section 75-1-402 for the claim that Mr. McBroom‘s mother could not 

waive notice on Mr. McBroom‘s behalf because Mr. McBroom‘s mother 

had a conflict of interest is unavailing. Once again, contrary to 

Mr. McBroom‘s citation to the 1953 Utah Code, section 75-1-402 was 

passed in 1975, did not take effect until July 1, 1977, and does not apply 

retroactively. Id. § 75-8-101. So, even assuming Mr. McBroom‘s mother

did have a conflict of interest with Mr. McBroom, this statute did not 

apply to the waiver of notice that Mr. McBroom and his mother signed 

in 1973. Consequently, because both Mr. McBroom and his mother 

assented to and signed the waiver of notice in 1973, and because they 

were permitted to do so under the existing probate code of the time, 

Mr. McBroom‘s claim that the waiver of notice is invalid based on this 

point fails. 

¶ 24 Mr. McBroom also contends that the waiver of notice he 

signed was limited to the petition for the letters of guardianship and to 

the issuance of those letters of guardianship to Commercial Security

Bank. Therefore, he claims to have never waived notice to the 

proceedings resulting in the 1973 Order nor to the proceedings 

resulting in the 1975 Order. However, even accepting that the waiver of 

notice covered only the petition for and issuance of the letters of 

guardianship to Commercial Security Bank, Mr. McBroom fails to cite 

any statutory authority requiring notice to be given to him after the 

appointment of his guardian. As a result, we conclude that there were 
In re Estate of R. C. WILLEY

Opinion of the Court

12

no statutory requirements at the time requiring that Mr. McBroom

personally be given notice of the proceedings resulting in the 1973 

Order or the proceedings resulting in the 1975 Order. 

¶ 25 Under the relevant statutes at the time, sections 75-13-12 and 

75-14-22, there were no requirements that Mr. McBroom personally 

receive notice of the proceedings resulting in the 1973 Order or the 1975 

Order. Id. Under section 75-13-12, the court was required to give notice 

only ―as it deems reasonable . . . to any person having the care of the 

minor, and to such relatives of the minor residing in the county as the 

court may deem proper.‖ Id. Under this provision, the district court 

was not required to give notice to Mr. McBroom at all, and it was 

required to give notice to his guardian or relatives only as it ―deem[ed] 

reasonable.‖ Id. Furthermore, section 75-14-22 stated that ―personal 

service upon the guardian of any process, notice[,] or order of the court 

concerning . . . any guardianship matter in which the ward is interested 

is equivalent to service upon the ward.‖ Id. Therefore, any notice that 

Commercial Security Bank received about the 1973 and the 1975 

proceedings is deemed the ―equivalent to service upon 

[Mr. McBroom].‖ Id. Consequently, there was no statutory requirement 

that Mr. McBroom personally receive notice regarding the proceedings. 

As long as Commercial Security Bank received notice about the 

proceedings, that was the equivalent to Mr. McBroom‘s receiving 

notice.10 And, in fact, Commercial Security Bank received notice in 1973 

and 1975 about the proceedings, and public notice was posted in Utah 

in 1973 and in 1975 for the proceedings. Thus, Mr. McBroom‘s 

contention that lack of notice rendered the Second District Court‘s 

orders void fails. 

2. Mr. McBroom‘s Claim About Having Reached the Age of Majority

¶ 26 For the second time before this court, Mr. McBroom makes 

the argument that ―he was no longer a minor when the [c]ourt issued 

[the 1975 Order] approving the sale of [Mr.] McBroom‘s [shares] in 

[R.C. Willey & Son].‖ Therefore, he argues, the Second District Court 

 

10 Mr. McBroom argues that a lack of notice violated his 

constitutional due process rights. However, this argument is not 

properly fleshed out and is not well taken. Mr. McBroom points to no 

authority for why the statutory provision in place at the time allowing 

notice to be given to his guardian violated his due process rights. In any 

case, Mr. McBroom waived any further notice. Supra ¶¶ 21-24. 
Cite as: 2016 UT 53

Opinion of the Court

13

lacked subject matter jurisdiction over the proceedings when it 

approved the sale of his shares. We previously dealt with this argument 

in Mr. McBroom‘s appeal in McBroom v. Child, 2016 UT 38, __ P.3d __. 

Since Mr. McBroom‘s claims are the same in regard to this point, we 

reach the same conclusion that this argument is wholly without merit. 

¶ 27 Mr. McBroom makes the argument that the Second District 

Court lacked jurisdiction to approve the sale of his shares in the 1975 

Order because he had obtained the age of majority. He cites Stanton v. 

Stanton, 429 U.S. 501, 505 (1977), for the proposition that ―both before 

and after the 1975 amendment to [the Utah majority statute], the 

statutory age of majority for both males and females in Utah was 18, 

not 21.‖ Mr. McBroom fails to acknowledge that this quote is actually 

from Justice Stevens‘ dissenting opinion in Stanton, and is not a 

statement of the law regarding the age of majority in Utah. See id. 

Instead, at the time of the Second District Court‘s approval of the sale of 

Mr. McBroom‘s shares, the age of majority for a male in Utah was 

twenty-one years. See Stanton v. Stanton, 421 U.S. 7, 9 (1975) (―[T]he 

period of minority for males extends to age 21 and for females to age 

18[.]‖). On March 24, 1975, the Utah Legislature amended the statute 

and established a uniform age of majority of eighteen years. Law of 

March 24, 1975, ch. 39, 1975 Utah Laws 121. The legislation went into 

effect on May 13, 1975. See Wiker v. Wiker, 600 P.2d 514, 515 (Utah 1978). 

Mr. McBroom turned eighteen on August 8, 1974, and KeyBank 

petitioned to sell his shares in February 1975. On both accounts, the 

amendment to the age of majority was not yet in effect; thus, 

Mr. McBroom was still a minor at the relevant time and the Second 

District Court had jurisdiction over the proceedings. Cf. Memmott v. 

Bosh, 520 P.2d 1342, 1343 (Utah 1974) (―[W]hen a minor attains majority 

status the guardian has no further rights in the estate and only has a 

duty to account to or to make settlement with his former wards.‖). As a 

result, Mr. McBroom was a minor in February 1975 and the Second 

District Court had subject matter jurisdiction to issue the 1975 Order. 

Therefore, that judgment is not void and may not be set aside under 

rule 60(b)(4).

3. The 1973 and the 1975 Orders‘ Alleged Conflicts with the 1956 

Probate Decree 

¶ 28 Mr. McBroom makes one final argument that the Second 

District Court lacked subject matter jurisdiction to issue the 1973 Order 

and the 1975 Order. As mentioned above, although Mr. McBroom 

attempts to characterize this claim as falling under rule 60(b)(6), we 
In re Estate of R. C. WILLEY

Opinion of the Court

14

conclude that it is more appropriately viewed as falling under 

paragraph (b)(4) because he argued that the conflicts render the 

judgment void. See supra ¶ 7. As a result, we address it here and 

conclude that this argument is without merit. 

¶ 29 Mr. McBroom argues that ―[b]ecause no court ever set aside 

or modified the probate decree [regarding Rufus Call Willey‘s estate 

(1956 Probate Decree)], it was a final order that could not be disturbed 

or collaterally attacked in 1973.‖ Consequently, he argues, ―the court 

entered the 1973 [O]rder that directly conflicted with the prior court 

order.‖ In addition, Mr. McBroom questions the ―legal effect‖ of the 

sale of his shares in R.C. Willey & Son because ―conveyance of a 

contingent remainder interest is highly unusual, and it is an open legal 

question whether the sale of a contingent remainder before the interest 

becomes vested is even valid.‖ Mr. McBroom also claims that ―the 

holder of a remainder interest must file an express disclaimer with the 

probate court to effectively renounce or disclaim his interest.‖ 

Therefore, since he did not file any such disclaimer, he never effectively 

renounced or disclaimed his interest in R.C. Willey & Son. Finally, Mr. 

McBroom argues that he never sold his shares in R.C. Willey & Son 

because he ―never knew of his interest [in the company] prior to or 

after the 1973 Agreement took effect,‖ and he argues that ―there was 

never performance under the 1973 Agreement‖ because he ―never was 

even paid the $5,000‖ he was owed under the 1973 Agreement. For the 

reasons discussed below, we conclude all of these claims by Mr. 

McBroom lack merit. 

¶ 30 First, the Second District Court‘s 1973 Order approving the 

1973 Agreement did not ―disturb[ ] or collaterally attack[ ]‖ the 1956 

Probate Decree. Instead, the 1973 Agreement operated as a sale of 

future interests for Mr. McBroom. And despite Mr. McBroom‘s claims 

to the contrary, it does not appear that ―it is an open legal question 

whether the sale of a contingent remainder before the interest becomes 

vested is even valid‖; there is nothing in Utah case law that prevented 

Mr. McBroom from selling his future interest. See In re Estate of Myers, 

2009 UT App 180, ¶ 2, 214 P.3d 115 (―To own a future interest now 

means not only to be entitled now to judicial protection of one‘s 

possible future possession, but also (in most cases) to be able to make 

transfers now of that right of possible future possession.‖) (quoting 

BLACK‘S LAW DICTIONARY 685 (7th ed. 1999)); see also Weight v. Bailey, 

147 P. 899, 900–01 (Utah 1915) (recognizing the validity of a sale of a 

remainder interest while the life estate holder was still alive). As a 

result, because Mr. McBroom was not prevented from selling his
Cite as: 2016 UT 53

Opinion of the Court

15

contingent remainder interest in Mr. Willey‘s estate, and because such a 

sale does not ―disturb[ ] or collaterally attack[ ]‖ the 1956 Probate 

Decree, the 1973 Order did not conflict with the 1956 Probate Decree in 

this manner. 

¶ 31 Furthermore, the 1973 Order approving the 1973 Agreement 

was not a renunciation or disclaimer of Mr. McBroom‘s inheritance 

interest. Instead, the 1973 Agreement was a sale of Mr. McBroom‘s 

future interests that he inherited under Mr. Willey‘s will. Consequently, 

he was not required to file an express disclaimer with the probate court 

to sell, rather than renounce or disclaim, his shares to R.C. Willey & Son 

under the 1973 Agreement. 

¶ 32 Finally, Mr. McBroom did sell his shares to R.C. Willey & Son 

in the 1973 Agreement despite his claims that he did not know about 

his interest or that he was never paid the $5,000 owed him under the 

Agreement. The 1973 Agreement, which Mr. McBroom‘s guardian 

signed, was an agreement to sell his shares in R.C. Willey & Son.

Mr. McBroom petitioned the court for the appointment of Commercial 

Security Bank as his guardian to represent him in the transaction. And 

the Second District Court approved of the 1973 Agreement as it related 

to Mr. McBroom in the 1973 Order. There can be no doubt that he, 

through representation of his guardian, agreed to sell his shares in R.C. 

Willey & Son in the 1973 Agreement. Mr. McBroom fails to explain 

what legal effect his alleged ignorance of his interest in R.C. Willey & 

Son would have had on the validity of the orders entered by the Second 

District Court approving the sale of his contingent interest in the 

company. And we do not see how his alleged ignorance would render 

the Second District Court‘s orders void. 

¶ 33 He further asserts that because he was not paid the $5,000 the 

sale of his shares is ―factually implausible.‖ However, this argument 

does not support a conclusion that the Second District Court‘s orders 

are void. At most, if Mr. McBroom truly was not paid the $5,000 owed 

him under the 1973 Agreement, his remedy would lie with R.C. Willey 

& Son, which is not party to this action. The claim that R.C. Willey & 

Son did not perform under the 1973 Agreement is not at issue in this 

rule 60(b) motion and is not properly raised to the extent Mr. McBroom 

claims to raise it. His rule 60(b) motion seeks to set aside the Second 

District Court‘s orders; it is not an action to recover for damages from 

R.C. Willey & Son. Therefore, we determine that the Second District 

Court‘s 1973 Order and 1975 Order did not conflict with the 1956 

Probate Decree and thus are not rendered void. 
In re Estate of R. C. WILLEY

Opinion of the Court

16

C. Mr. McBroom’s Claim That the Second District Court 

Lacked Personal Jurisdiction

¶ 34 We now consider Mr. McBroom‘s claim that the Second 

District Court lacked personal jurisdiction over him, rendering the 1973 

Order and the 1975 Order void. We conclude that because 

Mr. McBroom petitioned the court, he voluntarily submitted to the 

court‘s jurisdiction and the court properly exercised long-arm 

jurisdiction over Mr. McBroom‘s property. As a result, the Second 

District Court had personal jurisdiction over Mr. McBroom and his 

property located in Utah and the 1973 Order and the 1975 Order are not 

void. 

¶ 35 Mr. McBroom argues that because he did not ―reside within 

the court‘s jurisdictional territory‖ between 1973 and 1975, the Second 

District Court lacked jurisdiction over him. Mr. McBroom also argues 

that he never petitioned the court to sell his shares in R.C. Willey & Son 

and thus the ―district court improperly acted to grant a petition for 

approval of a sale of [Mr.] McBroom‘s interests without [Mr.] 

McBroom‘s knowledge and over a person not located within the State 

of Utah‘s jurisdiction.‖ Finally, Mr. McBroom asserts that he never held 

an interest in the stock of R.C. Willey & Son because the 1973 

Agreement was an agreement to sell his shares. As a result, 

Mr. McBroom never possessed any property located in Utah and ―[i]t is 

of no matter that the court had jurisdiction over the property of the 

estate of [Mr.] Willey, which was in the confines of Utah.‖

Mr. McBroom is wrong on all counts. 

¶ 36 First, Mr. McBroom and his mother petitioned the Second 

District Court for the appointment of Commercial Security Bank as 

Mr. McBroom‘s guardian. We agree with KeyBank that ―[p]etitioners 

who take advantage of Utah courts by seeking the entry of orders 

authorized by statute should not be heard to complain that the court 

which granted their petition lacked personal jurisdiction to do exactly 

what they asked it to do.‖ It is undisputed that Mr. McBroom and his 

mother asked the Second District Court to appoint Commercial 

Security Bank as guardian over Mr. McBroom‘s estate. Mr. McBroom 

cannot argue forty-three years after he petitioned the district court that 

it lacked personal jurisdiction over him. He submitted to the Second 

District Court‘s jurisdiction when he signed and filed the petition for 

guardianship. As a result, Mr. McBroom ―transact[ed] . . . business 

within this state,‖ and the Second District Court properly exercised 

long-arm jurisdiction over him, even though he was not residing in

Utah. UTAH CODE § 78B-3-205. 
Cite as: 2016 UT 53

Opinion of the Court

17

¶ 37 Furthermore, it is of no matter that Mr. McBroom did not 

separately petition the district court for permission to sell his shares in 

R.C. Willey & Son. Once Commercial Security Bank was appointed as 

guardian over Mr. McBroom‘s estate, it was authorized to conduct 

business regarding Mr. McBroom‘s estate. Commercial Security Bank 

petitioned the district court for authority to sell Mr. McBroom‘s shares 

in R.C. Willey & Son. A separate petition from Mr. McBroom himself 

was not required, and Mr. McBroom does not cite any legal authority to 

that effect. And, as stated above, no statute in place required notice to 

be given to Mr. McBroom personally of those proceedings. See supra

¶ 24. Instead, the notice provided to his guardian, Commercial Security 

Bank, was deemed the equivalent of notice to Mr. McBroom. See UTAH 

CODE § 75-14-22 (1953). Consequently, the fact that Mr. McBroom never 

received personal notice about the proceedings resulting in the 1975 

Order and the fact that he was not located in Utah did not divest the 

Second District Court of personal jurisdiction over Mr. McBroom‘s 

estate. 

¶ 38 Finally, Mr. McBroom‘s claim that he never possessed any 

property in Utah is wrong. Under the terms of the 1973 Agreement, 

Mr. McBroom exchanged his contingent remainder interest in R.C. 

Willey & Son for a present possessory interest of five shares of stock in 

the company. As R.C. Willey & Son was a company incorporated in 

Utah, this property was located in the state of Utah. Even though 

Mr. McBroom agreed to sell his interests in the company in the 1973 

Agreement, the sale of his shares did not take place until 1975. 

Consequently, his assertion that he never held an interest in the stock of 

R.C. Willey & Son because he subsequently sold those shares two years 

later is without merit. The 1973 Agreement and the 1975 sale of his 

shares were ―transaction[s] of . . . business within this state,‖ and, as 

such, the Second District Court had authority to exercise long-arm 

jurisdiction over them. Id. § 78B-3-205. Therefore, we conclude that the 

Second District Court did have personal jurisdiction and the judgments 

are not void on this basis. 

D. Mr. McBroom’s Claim That the 1973 Order Is Void Because 

of His Grandmother’s Conflict of Interest and Self-Dealing

¶ 39 The final claim we analyze is Mr. McBroom‘s claim that 

―relief is justified based upon conflict of interest and self-dealing by the 

administratrix‖ of Mr. Willey‘s estate, his grandmother, Helen Barber. 

We hold that there is no legal basis to conclude that the 1973 Order was 

void based on a conflict of interest from Ms. Barber. Nor is there 
In re Estate of R. C. WILLEY

Opinion of the Court

18

evidence to conclude that Ms. Barber engaged in self-dealing by 

entering into the terms of the 1973 Agreement that was approved by 

the Second District Court in the 1973 Order. 

¶ 40 To support his claim that the 1973 Order is void, 

Mr. McBroom cites Utah Code section 75-3-712. That section states that 

[a]ny sale or encumbrance to the personal representative 

. . . or any corporation . . . in which he has a substantial 

beneficial interest, or any transaction which is affected by 

a substantial conflict of interest on the part of the personal 

representative, is voidable by any person interested in the 

estate. 

Id. However, this section is not from the 1953 Utah Code as 

Mr. McBroom asserts. Instead, this is a current provision of the Utah 

Probate Code, effective in 1977. UTAH CODE § 75-8-101. Furthermore, 

―[a]n act done before the effective date in any proceeding and any 

accrued right is not impaired by [the Utah Uniform Probate Code].‖ Id.

The 1973 Order was entered on October 12, 1973, well before section 

75-3-712 came into effect. Therefore, this section dealing with conflicts 

of interest does not apply to the 1973 Order. Besides, under the plain 

language of section 75-3-712, a transaction affected by conflicts of 

interest is voidable rather than void, and it is therefore doubtful that a 

conflict of interest under this statute would meet the requirements of 

rule 60(b)(4). Id.; UTAH R. CIV. P. 60(b)(4) (allowing a judgment to be set 

aside on the grounds that ―the judgment is void‖).

¶ 41 In addition, Mr. McBroom claims that Ms. Barber engaged in 

self-dealing by ―[u]sing the 1973 Agreement . . . [to] redistribute[ ] the 

inheritance of the heirs to herself, to [William] Child, and to [R.C. 

Willey & Son] – a company in which [Ms.] Barber owned only a life 

estate interest.‖ Once again, the 1973 Agreement and the 1973 Order 

approving it did not disturb the 1956 Probate Decree, which closed the 

affairs of Mr. Willey‘s estate. See supra ¶ 30. Instead, it was an 

agreement that exchanged vested and contingent interests inherited by 

the beneficiaries of Mr. Willey‘s will. Furthermore, the estate of 

Mr. Willey was probated in 1956 and Ms. Barber was no longer acting 

as administratrix of Mr. Willey‘s estate by the time the 1973 Agreement 

was entered. See, e.g., UTAH CODE § 75-3-1003(2) (―If no proceedings 

involving the personal representative are pending in the court one year 

after the closing statement is filed, the appointment of the personal 

representative terminates.‖). Therefore, Mr. McBroom‘s contention that 

Ms. Barber was self-dealing is not borne out by the evidence of what 
Cite as: 2016 UT 53

Opinion of the Court

19

the 1973 Agreement was, and Ms. Barber was no longer acting as 

administratrix at the time the 1973 Agreement was entered. As a result, 

the Second District Court‘s 1973 Order approving of the 1973 

Agreement is not rendered void by self-dealing on the part of 

Ms. Barber. 

CONCLUSION

¶ 42 In conclusion, we affirm the district court‘s denial of 

Mr. McBroom‘s rule 60(b) motion. His claims fall under rule 60 

paragraphs (b)(3) and (b)(4), rather than under paragraph (b)(6). Since 

Mr. McBroom failed to file his claims under rule 60(b)(3) within ninety

days, as required by rule 60(c), his claims under paragraph (b)(3) are 

untimely and we do not consider them. And although we do not 

determine whether motions made under rule 60(b)(4) are subject to a 

reasonable time limit, we conclude that Mr. McBroom‘s claims under 

rule 60(b)(4) fail on their merits. As a result, we hold that the district 

court did not abuse its discretion when it denied Mr. McBroom‘s rule 

60(b) motion.