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 
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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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20190661-CA 3 2020 UT App 100

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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20190661-CA 5 2020 UT App 100

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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20190661-CA 6 2020 UT App 100

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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20190661-CA 7 2020 UT App 100

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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20190661-CA 8 2020 UT App 100

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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20190661-CA 9 2020 UT App 100

¶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-civilrules#eProcedureWithdrawal [https://perma.cc/TN4L-HD37] 

(emphasis added).
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20190661-CA 10 2020 UT App 100

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 Child6 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...)
Young v. Hagel

20190661-CA 11 2020 UT App 100

¶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...)
Young v. Hagel

20190661-CA 12 2020 UT App 100

 

(...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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20190661-CA 13 2020 UT App 100

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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20190661-CA 14 2020 UT App 100

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.