Nakkina v. Mahanthi

2021 UT App 111THE UTAH COURT OF APPEALS
SIREESHA NAKKINA,
Appellee,
v.
PRODEEP KUMAR MAHANTHI,
Appellant.
Amended Opinion1
No. 20190750-CA
Filed October 21, 2021
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 164903563
Eric K. Johnson, Attorney for Appellant
Kelli J. Larson, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
POHLMAN, Judge:
¶1 Prodeep Kumar Mahanthi and Sireesha Nakkina divorced
in August 2019. Mahanthi appeals the trial court’s decree of
divorce, challenging the court’s division of parent-time and its
award of certain personal property and attorney fees to Nakkina.
1. This Amended Opinion replaces the Opinion in Case No.
20190750-CA, issued on June 17, 2021. After our original opinion
issued, Mahanthi filed a petition for rehearing, and we called for
a response. We grant the petition for the limited purpose of
adding footnote 7, but otherwise deny the petition.
Nakkina v. Mahanthi
He also appeals the court’s denial of his motion to amend its
findings of fact and conclusions of law.
¶2 We conclude that the court acted within its discretion in
denying the motion to amend. But we conclude that the court
exceeded its discretion in not dividing parent-time equally
between Mahanthi and Nakkina. We also conclude that the court
erred in its personal property determination and that its attorney
fees award was not supported by sufficient findings.
Accordingly, we affirm in part, reverse in part, vacate the
attorney-fees award and award of certain personal property, and
remand for further proceedings.
BACKGROUND2
¶3 Nakkina and Mahanthi married in India in December
2005. Shortly thereafter, the couple moved to the United States
for Mahanthi’s employment. The couple lived in Salt Lake City,
Utah, for a few months before relocating to Atlanta, Georgia.
¶4 After becoming pregnant with their first child, Nakkina
returned to India in 2006, where the child was born. Nakkina
eventually returned to the United States but again travelled to
India in 2010 while pregnant with the couple’s second child.
Nakkina took the first child with her, and she remained in India
for two and a half years with the two children. Mahanthi
occasionally visited Nakkina and the children during their time
2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard,” and “we present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Kidd v. Kidd, 2014 UT App 26, ¶ 2 n.1, 321 P.3d
200 (cleaned up).
20190750-CA 2 2021 UT App 111Nakkina v. Mahanthi
in India but otherwise remained in the United States for his
employment.
¶5 Nakkina returned to the United States with the children
in 2012 and joined Mahanthi who had moved back to Utah. The
couple separated in 2016, and Nakkina filed for divorce shortly
thereafter. From the time of their separation until the trial court
finalized the divorce decree—nearly three years—Nakkina
exercised temporary primary physical custody of the children
while Mahanthi exercised his allotted statutory parent-time
pursuant to Utah Code section 30-3-35.
¶6 At trial, Nakkina testified that Mahanthi’s employment
prevented him from spending quality time with their children.
She explained that when the children were very young,
Mahanthi regularly traveled for work and was away from home
for days at a time. She further alleged that while she was in India
with the children, Mahanthi’s visits were infrequent and he did
not spend much time with the family even when he was present.
She also testified that she was the primary caregiver for the
children, performing tasks such as bathing and feeding them. In
general, Nakkina claimed that Mahanthi was an absent father.
¶7 Mahanthi largely denied Nakkina’s allegations. He
testified that although he used to travel a lot for his employment
and would occasionally stay up late working to accommodate
his employer’s operations overseas, he participated in raising the
children, performing all the tasks Nakkina claimed she managed
alone. Mahanthi further testified that he quit his travelling job
several years prior and that his new job did not interfere with his
parent-time.
¶8 Regarding the couple’s personal property, Nakkina
testified about pieces of jewelry she claimed Mahanthi gave her
as gifts during the marriage. She described a diamond necklace,
a pair of earrings, and another necklace and set of earrings,
20190750-CA 3 2021 UT App 111Nakkina v. Mahanthi
which, according to Nakkina, have a combined estimated value
of between $15,000 and $18,000.3
¶9 Finally, Nakkina testified that she had borrowed about
$61,000 from friends and family that she used, in part, to pay the
attorney fees she incurred in litigating the divorce. Nakkina
admitted that there was no formal agreement to repay this
money. However, she testified that her friends and family still
expected to be repaid. In calculating her monthly expenses for
alimony, Nakkina included $1,000 per month for payments
associated with this debt.
¶10 Following trial, the court issued findings of fact and
conclusions of law and ordered the parties to prepare a final
decree for the court’s review. Invoking “rules 52 and 59 of the
Utah Rules of Civil Procedure,” Mahanthi filed a motion to
amend certain of the court’s findings of fact and conclusions of
law. The trial court denied Mahanthi’s motion, stating that it
viewed the “Motion to Amend as a motion for the Court to
reconsider its recent Findings, which the Court will not do.” It
subsequently issued a Final Order and Decree.
¶11 In its Final Order and Decree, the trial court awarded the
parties joint physical custody with a parent-time schedule close
to equal time: Nakkina was awarded eight out of every fourteen
days with the children and Mahanthi was awarded six out of
every fourteen days (6/14 schedule). The court stated that the “6
out of 14 schedule provides an equitable balance and adequately
considers all of the facts and, ultimately, is in the best interest of
3. Nakkina estimated that the jewelry was worth about $18,000
and could be sold for “maybe” $15,000. Her estimation that the
jewelry could be sold for $15,000 was struck for lack of
foundation, but that is the value the court gave the jewelry in its
final decree. Neither party challenges that valuation.
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the children.” While the court acknowledged that many factors
supported “equal time, or close to equal time, for both parents,”
it reasoned that two related factors justified the less-than-equal
division of parent-time for Mahanthi: (1) that the “family unit
relies heavily on [Mahanthi’s] income” and (2) that “the
demands of [Mahanthi’s] job are, and will likely always be,
greater than any of the demands of [Nakkina’s] job.”
¶12 Next, the trial court awarded the jewelry exclusively to
Nakkina and “decline[d] to award [Mahanthi] anything for [it].”
Consistent with Nakkina’s testimony, the court found that
Mahanthi had gifted the jewelry to her during the marriage and
that it was worth “about $15,000.” The court further concluded
that the jewelry “need not be divided” because “gifts given
during the marriage are not marital property.”
¶13 Lastly, the trial court ordered Mahanthi to pay Nakkina
her attorney fees in the amount of $40,600, crediting Mahanthi
for his prior payments. The court rejected Nakkina’s $1,000
monthly expense “in debt payments to family and friends for the
alleged loan” for attorney fees because she presented no
evidence that she was legally obligated to pay her friends and
family back. Still, it justified awarding attorney fees in a
subsequent order, stating,
[Nakkina] has a demonstrated monthly need that
will be addressed, at least in part, by an award of
child support and alimony. In calculating
[Nakkina’s] need, the Court did not address her
attorney’s fees, which were above and beyond her
monthly expenses—which she is unable to meet.
Accordingly, [Nakkina] has a demonstrated need
associated with any and all fees she has incurred in
this matter.
(Cleaned up.)
20190750-CA 5 2021 UT App 111Nakkina v. Mahanthi
¶14 Mahanthi now appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 On appeal, Mahanthi raises four issues. First, he contends
that the trial court erred in not awarding him equal parent-time.
We review a trial court’s parent-time determination for abuse of
discretion. Blocker v. Blocker, 2019 UT App 82, ¶ 8, 444 P.3d 541.
¶16 Second, Mahanthi contends that the trial court erred in
awarding Nakkina the jewelry Mahanthi gave her as gifts during
the marriage. “We will not disturb a property award unless we
determine that there has been a misunderstanding or
misapplication of the law resulting in substantial and prejudicial
error, the evidence clearly preponderates against the findings, or
such a serious inequity has resulted as to manifest a clear abuse
of discretion.” Jensen v. Jensen, 2009 UT App 1, ¶ 6, 203 P.3d 1020(cleaned up).
¶17 Third, he contends that the trial court erred in awarding
attorney fees to Nakkina. “We review a trial court’s attorney fees
award in divorce proceedings for abuse of discretion.” Id. ¶ 7.
“An award for attorney fees must be based on sufficient
findings, and the failure to make such findings requires remand
for more detailed findings by the trial court.” Leppert v. Leppert,
2009 UT App 10, ¶ 25, 200 P.3d 223 (cleaned up).
¶18 Fourth, he contends that the trial court improperly
refused to reconsider its findings of fact and conclusions of law.
“As long as the case has not been appealed and remanded,
reconsideration of an issue before a final judgment is within the
sound discretion of the district court.” Ross v. Short, 2018 UT
App 178, ¶ 10, 436 P.3d 318 (cleaned up). Thus, we will reverse a
trial court’s denial of a motion to reconsider “only if there is no
20190750-CA 6 2021 UT App 111Nakkina v. Mahanthi
reasonable basis for the decision.” Tschaggeny v. Milbank Ins. Co.,
2007 UT 37, ¶ 16, 163 P.3d 615 (cleaned up).
ANALYSIS
I. Parent-Time
¶19 Mahanthi first contends that the trial court erred by
awarding him less than equal parent-time. When determining
what is in the children’s best interest regarding parent-time, the
decision “turns on numerous factors, each of which may vary in
importance according to the facts in the particular case.” See
Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987). Generally,
parent-time should be awarded “at a level consistent with all
parties’ interests.” Utah Code Ann. § 30-3-32(1) (LexisNexis
2019). “Absent a showing by a preponderance of evidence of real
harm or substantiated potential harm to the child,” it is in the
children’s best interest “to have frequent, meaningful, and
continuing” time with each parent. Id. § 30-3-32(2)(b)(i). In
addition, each parent is entitled to “frequent, meaningful, and
continuing access” with the children. Id. § 30-3-32(2)(b)(ii).
¶20 Even though we afford the trial court broad discretion
when weighing these factors, a parent-time award “must be
firmly anchored on findings of fact that (1) are sufficiently
detailed, (2) include enough facts to disclose the process through
which the ultimate conclusion is reached, (3) indicate the process
is logical and properly supported, and (4) are not clearly
erroneous.” See Marchant v. Marchant, 743 P.2d 199, 203 (Utah Ct.
App. 1987). “Findings of fact are clearly erroneous if it can be
shown that they are against the clear weight of evidence or that
they induce a definite and firm conviction that a mistake has
been made.” Maughan v. Maughan, 770 P.2d 156, 159 (Utah Ct.
App. 1989). Additionally, the trial court “cannot act arbitrarily,
or on supposition or conjecture as to facts upon which to justify
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its [parent-time] order.” See Iverson v. Iverson, 526 P.2d 1126, 1127
(Utah 1974).
¶21 Mahanthi argues that the trial court’s order awarding him
less-than-equal parent-time is not firmly anchored in the
findings of fact because it is based on speculation, conjecture, or
supposition. He asserts that there is no evidence to support the
trial court’s finding that he cannot simultaneously maintain his
employment and exercise equal parent-time. In contrast,
Nakkina argues that the trial court sufficiently articulated its
findings, justifying the 6/14 schedule, and that such a decision
was within the trial court’s discretion. We agree with Mahanthi.
Although we are mindful of the court’s discretion and appreciate
the careful way it articulated its findings in support of a 6/14
schedule, the court’s rationale is not supported by the evidence.
¶22 In addressing the statutory factors for determining
parent-time in section 30-3-10 of the Utah Code, the trial court
found that the factors “favorably support a joint arrangement
giving each parent equal, or close to equal, time with the
[children].” For example, the court found it was “important for
both parents to have a relationship” with the children and there
“was certainly nothing to suggest that maximum time with
either parent would be harmful to . . . either of the children.”
Also, the court concluded that the children “have good
relationships with each of their parents” and “there is no
legitimate argument that the [children] would be endangered by
broadening [Mahanthi’s] parent time from 5 to 6 or 7 days every
two weeks.”
¶23 But after highlighting the many reasons that justified an
award of equal parent-time, the court ultimately rejected a 50/50
split for two related reasons. First, the court explained, “the
reality is that this family unit relies heavily on [Mahanthi’s]
income. It is imperative that he continue with his work.”
“Second, the demands of [Mahanthi’s] job are, and will likely
20190750-CA 8 2021 UT App 111Nakkina v. Mahanthi
always be, greater than any of the demands of [Nakkina’s] job,
whatever that may be.” Thus, the court awarded Mahanthi less
than equal parent-time to “reduce [his] burden” and provide
some “flexibility in his schedule to accommodate his work
demands.” While the court meant well, its findings lack
evidentiary support.
¶24 The testimony at trial was that years ago, while the
children were still very young, Mahanthi’s job required that he
travel several nights every week and, occasionally, work late to
accommodate his employer’s operations. But there was no
evidence that Mahanthi’s work continued to be so demanding.
Instead, he testified that his schedule did not interfere with his
parent-time, and the court even expressed its lack of concern
about Mahanthi’s “availability as a parent going forward.”
Further, although Nakkina opposed a 50/50 split for a variety of
reasons, she made no complaints about his work schedule, and
she expressed no concern over Mahanthi’s ability to
accommodate both his job and his children.
¶25 In sum, the trial court has broad discretion in awarding
parent-time. But limiting Mahanthi’s parent-time based on
unsubstantiated concerns about his work demands “does not
follow from the findings stated.” See Nebeker v. Orton, 2019 UT
App 23, ¶ 39, 438 P.3d 1053. We therefore reverse the trial court’s
award of parent-time with instructions to award equal parent-
time.
II. Jewelry
¶26 Mahanthi next contends that the trial court erred in
awarding Nakkina the jewelry Mahanthi gave her during the
marriage. In distributing property in a divorce proceeding,
“[t]he presumption is that marital property will be divided
equally while separate property will not be divided at all.”
Lindsey v. Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968. Thus, a
20190750-CA 9 2021 UT App 111Nakkina v. Mahanthi
trial court “must identify the property in dispute and determine
whether each item is marital or separate property.” Stonehocker v.
Stonehocker, 2008 UT App 11, ¶ 15, 176 P.3d 476. Mahanthi
contends that the trial court applied the wrong legal standard to
conclude that his gifts to Nakkina are not marital property
subject to division. We agree.
¶27 Citing Burke v. Burke, 733 P.2d 133 (Utah 1987), the trial
court concluded that “gifts given during the marriage are not
marital property and need not be divided in the event of
divorce.” But Burke involved an inheritance received by one
spouse during the marriage, not a gift from one spouse to the
other purchased with marital funds. See id. at 134–35. As a
general rule, courts “award property acquired by one spouse by
gift and inheritance during the marriage (or property acquired in
exchange thereof) to that spouse, together with any appreciation
or enhancement of its value,” unless the property has been
commingled or the other spouse has acquired an equitable
interest in the property by contributing to its enhanced value.
Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988). Gifts and
inheritance to an individual spouse are treated as separate
property because they are “not acquired through the joint efforts
of the parties.” See Preston v. Preston, 646 P.2d 705, 706 (Utah
1982) (cleaned up); see also Mortensen, 760 P.2d at 307 (explaining
that “property which comes to either party by avenues other
than as a consequence of their mutual efforts owes nothing to the
marriage and is not intended to be shared” (cleaned up)).
¶28 But this rule applies only to gifts received during the
marriage from an outside source. It does not apply when one
spouse uses marital funds to purchase property, regardless of
whether those purchases are designated as a “gift” from one
spouse to another. See Morris v. Morris, 2005 UT App 435U, para.
3 (holding that the district court acted within its discretion in
valuing “gifts” from one spouse to another as marital property
when one spouse “purchased the gifts during their marriage,
20190750-CA 10 2021 UT App 111Nakkina v. Mahanthi
using marital funds to do so”). In such circumstances, both the
gifting and receiving spouse have a pre-existing right of
ownership in the marital assets used to acquire the property. A
purchase financed with marital funds already belonging to both
spouses is not a “gift” in the sense used in our case law.
¶29 In light of this precedent, it was error for the trial court to
conclude, as a matter of law, that the jewelry Mahanthi gave
Nakkina during the marriage was necessarily Nakkina’s
separate property and not subject to division in the divorce. The
property was acquired during the marriage, with marital funds,
and as such was presumptively marital. See Lindsey, 2017 UT
App 38, ¶ 31 (“Marital property ordinarily includes all property
acquired during marriage, whenever obtained and from
whatever source derived.” (cleaned up)). We therefore vacate the
court’s award of the jewelry and remand to give the trial court
the opportunity to reconsider its award and, if necessary, to
amend its order awarding the jewelry in its entirety to Nakkina.4
III. Attorney Fees
¶30 Mahanthi next argues that the trial court erred in
awarding Nakkina attorney fees. Pursuant to section 30-3-3(1) of
the Utah Code, a party in a divorce proceeding may be required
4. Nakkina invites us to affirm the trial court’s award on
alternative grounds, arguing that even if the jewelry is “a marital
asset eligible for division between the parties, the court still has
broad discretion in making an award of the personal property
and the court was well within its right to award the jewelry to
[Nakkina].” We decline this invitation because it is not for us to
exercise that discretion on behalf of the trial court. The court
may determine it is appropriate, for another reason, to award the
jewelry to Nakkina. But that is a decision for the trial court to
make in the first instance.
20190750-CA 11 2021 UT App 111Nakkina v. Mahanthi
to pay the attorney fees “of the other party to enable the other
party to prosecute or defend the action.” Utah Code Ann. § 30-3-
3(1) (LexisNexis 2019). The party to be awarded attorney fees
under this section has the burden to prove (1) that the payee
spouse has a financial need, (2) that the payor spouse has the
ability to pay, and (3) that the fees requested are reasonable. Dahl
v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276. On appeal, Mahanthi
challenges only the first element of the test: whether Nakkina
had a financial need for the award of attorney fees. “When
determining the financial need of the requesting spouse, [courts]
generally look to the requesting spouse’s income, including
alimony received as the result of a divorce decree; the property
received via the property distribution award; and his or her
expenses.” Id. ¶ 170 (cleaned up).
¶31 Mahanthi argues that the court erred in awarding
Nakkina her attorney fees because those fees have already been
paid. Nakkina argues that this is irrelevant because attorney fees
may still be awarded based on need if a party borrowed funds to
pay those fees. Nakkina has a point. Utah courts have
recognized that “[p]arties to a divorce action often incur debt to
retain counsel,” id., and that “the very existence of indebtedness
to fund legal services may tend to show need,” Kimball v.
Kimball, 2009 UT App 233, ¶ 46, 217 P.3d 733. Likewise, Nakkina
argues that she incurred debt to pay her fees, and that the
friends and family who lent her funds “expected to be repaid
eventually and it would detrimentally impact her relationships if
she did not repay them.”
¶32 We acknowledge that indebtedness to friends and family,
while not determinative, may tend to demonstrate a need
sufficient to satisfy section 30-3-3(1). See id. (holding that it is the
existence of indebtedness to fund legal services that tends to
show need regardless of whether the debt is owed to an
attorney, a bank, family, or a friend). This is true “especially if
[the spouse] is expected to repay his [or her] family in due
20190750-CA 12 2021 UT App 111Nakkina v. Mahanthi
course, even if the family members are disinclined to commence
a collection action to enforce such repayment.” Id. ¶ 48. But it is
unclear if Nakkina’s indebtedness, or something else, was the
basis for the court’s finding that she had a need for assistance to
pay her attorney fees.
¶33 In finding that Nakkina had an unmet need, the court
stated that she “has a demonstrated need associated with any
and all fees she has incurred in this matter” and incorporated the
need-related “findings made in [the court’s] principal set of
[Findings of Fact and Conclusions of Law].” But in those
findings, the only mention of Nakkina’s attorney fees was in the
court’s expression of “concern[] with the reliability of some of”
her claimed expenses. In particular, the court did not accept
Nakkina’s claimed expense of $1,000 a month “in debt payments
to family and friends for the alleged loans” used to pay her
attorney fees. The court rejected Nakkina’s claim that she was
“legally indebted to family members” because her testimony on
the “topic was ambiguous” and because it was not supported by
any “corroborating documents.”
¶34 Unfortunately, these findings do not reveal the steps the
trial court took to find that Nakkina had demonstrated an unmet
need. See Jensen v. Jensen, 2009 UT App 1, ¶ 18, 203 P.3d 1020(“When awarding attorney fees in divorce cases, the trial court is
required to make explicit findings regarding the financial need
of the receiving spouse . . . .” (cleaned up)). The court stated that
Nakkina “is unable to meet” her attorney fees expenses, which
“were above and beyond her monthly expenses,” but this
finding does not appear to account for the fact that Nakkina’s
fees had already been paid and that the court rejected Nakkina’s
claims of indebtedness to her family and friends, at least for
purposes of determining alimony. Accordingly, we vacate the
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trial court’s attorney fees award and remand for reconsideration
and entry of sufficient findings of fact thereon.5
IV. Motion to Amend
¶35 Lastly, Mahanthi appeals the trial court’s denial of his
motion to amend the court’s findings of fact and conclusions of
law. Mahanthi contends that his motion was properly filed
under rule 59 of the Utah Rules of Civil Procedure and that the
court erred in rejecting it as a motion to reconsider. We disagree.
¶36 “Motions to reconsider are not recognized by the Utah
Rules of Civil Procedure,” and “trial courts are under no
obligation to consider [them].” Tschaggeny v. Milbank Ins. Co.,
2007 UT 37, ¶ 15, 163 P.3d 615; see also A.S. v. R.S., 2017 UT 77,
¶ 28, 416 P.3d 465. Although Mahanthi takes no issue with this
general principle, he contends that the court erred in
“recast[ing]” his motion to amend as a motion to reconsider.
Mahanthi argues that his motion “was appropriately titled as a
5. Mahanthi also complains that he is entitled to a credit for an
alleged overpayment of attorney fees in the amount of $10,000.
He argues that Nakkina’s lawyer was paid $64,000 in fees, but
because the court awarded Nakkina only $54,600, he should
receive a credit for some of the fees he already paid. Mahanthi
has not demonstrated that he preserved this issue for appeal,
and we reject it on that basis. See Allen v. Allen, 2021 UT App 20,
¶¶ 37–38, 483 P.3d 730, petition for cert. filed, May 21, 2021 (No.
20210355). But even if the issue had been preserved, it does not
appear that any amount would be due Mahanthi. The trial court
found that Nakkina reasonably incurred $54,600 in attorney fees,
and it ordered Mahanthi to pay $40,600 after crediting him
$14,000 for fees he already paid. The fact that Nakkina may have
paid her attorney more than $54,600 does not entitle Mahanthi to
a credit.
20190750-CA 14 2021 UT App 111Nakkina v. Mahanthi
Rule 59 motion to amend and contained all the elements
required by the rule.” (Cleaned up.) But Mahanthi’s motion was
not a rule 59 motion simply because he labeled it as such.
¶37 Rule 59 allows a party to seek to alter or amend a
judgment. See Utah R. Civ. P. 59(e) (“A motion to alter or amend
the judgment must be filed no later than 28 days after entry of
the judgment.”); see also Ron Shepherd Ins., Inc. v. Shields, 882 P.2d
650, 653 (Utah 1994) (“Rule 59, according to its plain language,
applies only to motions for new trials or amendments of
judgments.”). Mahanthi’s motion did not seek to amend a
judgment; rather, Mahanthi sought to amend the court’s pre-
judgment findings of fact and conclusions of law.6 Thus, because
Mahanthi’s motion preceded the judgment, the court did not err
in construing it as a motion to reconsider, and Mahanthi has not
shown that the court abused its discretion in denying it as such.7
6. Mahanthi expressed some confusion about whether the court’s
findings and conclusions constituted its final judgment in the
case. But the court’s order directed Mahanthi’s counsel to draft a
“Final Order and Decree in accordance with these findings and
conclusions.” Further, subsequent proceedings made clear that
the court expected to enter a decree to effectuate its findings and
conclusions, and the court later entered a Final Order and
Decree.
7. Mahanthi argues that this determination conflicts with our
decision in Hudema v. Carpenter, where we held that a rule 59
motion filed before the entry of judgment “was timely in the
jurisdictional sense and thus extended the period in which
[Hudema] could file her notice of appeal.” 1999 UT App 290,
¶ 19, 989 P.2d 491. But we are not holding that a rule 59 motion
made before the entry of judgment is untimely for purposes of
tolling the appeal period. Rather, we hold that the court acted
(continued…)
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V. Fees on Appeal
¶38 Nakkina requests an award of her attorney fees incurred
in defending this appeal. “In divorce actions where the trial
court has awarded attorney fees and the receiving spouse
prevails on the main issues, we generally award fees on appeal.”
Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 17, 257 P.3d 478 (cleaned
up). Although Nakkina was awarded fees by the trial court, we
have vacated that award and remanded for reconsideration.
Further, even if that award is ultimately sustained by the trial
court, because Nakkina has prevailed only on the motion to
amend issue and not the others, she is not entitled to an award of
attorney fees on appeal.
CONCLUSION
¶39 The trial court erred by not awarding equal parent-time
because the award was not firmly anchored on findings of fact.
Thus, we reverse the ruling, and we order the court to award
equal parent-time. The court also erred by awarding Nakkina
the jewelry based on a misunderstanding of the law. We
therefore vacate the award and remand with instructions to
divide the jewelry using the appropriate standard. Next, the
court erred by awarding Nakkina attorney fees because it failed
(…continued)
within its discretion to construe Mahanthi’s motion as a motion
to reconsider when Mahanthi sought reconsideration of the
court’s findings of fact and conclusions of law and filed it before
the court entered its final decree. See Gillett v. Price, 2006 UT 24,
¶ 7 n.2, 135 P.3d 861 (“Arguably, the plantiffs’ [purported rule
59] motion could not even be construed as a postjudgment
motion to amend under our prior case law because the plaintiffs
filed it before the entry of a final judgment.”).
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to make adequate findings regarding her need related to
receiving attorney fees. Thus, we vacate the attorney fees award
and remand for reconsideration and entry of sufficient findings
of fact thereon. Lastly, the court did not err by dismissing
Mahanthi’s motion to amend because when his motion was filed
there was no final order or judgment to be reviewed under rule
59. We therefore affirm the court on this issue.
20190750-CA 17 2021 UT App 111