¶ 1 This case involves the testamentary appointment of guardianship and conservatorship of a minor (Child). Although he never formally intervened in the case below, Child's biological father, Tetlo "Danny" Goings, challenges the appointment of Child's maternal grandparents (Grandparents) as Child's guardians. On appeal, Mr. Goings argues that (a) the district court erred in its interpretation of the term "parent" and accordingly, the guardianship petition was invalid on its face; (b) the guardianship petition was fraudulent; (c) even if they were entitled to guardianship, Grandparents were not entitled to custody of Child; and (d) the court of appeals improperly awarded attorney fees to Grandparents. Grandparents argue that Mr. Goings lacks standing to bring this appeal because he never formally intervened in the case below.
¶ 2 We conclude that Mr. Goings received statutory intervenor status when he filed his objection to the Guardianship Appointment. Accordingly, he has standing to bring his appeal even though he did not formally intervene in this case. But we also conclude that Mr. Goings failed to preserve any of the issues he raises on appeal and that none of them warrant reversal under our plain error review. Finally, we do not consider whether the court of appeals properly sanctioned Mr. Goings's counsel because we lack jurisdiction to consider this issue. Accordingly, we affirm the district court's denial of Mr. Goings's motion to vacate the appointment of Grandparents as Child's guardians.
¶ 3 Child was born in 2005. Although Child's mother (Mother) was never married to Mr. Goings, Child was named after Mr. Goings's brother and was given his family name. But Mr. Goings was not listed as the father on Child's birth certificate, and he did not sign a voluntary declaration of paternity form at Child's birth.
¶ 4 Grandparents and Mr. Goings dispute the level at which Mr. Goings was involved in Child's life. Specifically, Grandparents allege that Mr. Goings was not present at Child's birth, that he never visited Mother and Child at the hospital when Child was born, that he paid no birth expenses, and that he refused to acknowledge Child as his own. Further, they allege that Mr. Goings "physically and emotionally abused" Mother, that Mother was afraid of him, and that "[h]e threatened her into never taking any paternity action against him and told her that if she did, he `would find ways to have the child taken from her.'" They admit that Mother and Child lived with Mr. Goings for a short time in 2006, but they claim that, during this time, Mother paid rent to Mr. Goings and that Mr. Goings's girlfriend also lived in the home. They also allege that Mr. Goings has never paid child support. They claim that Child lived with Mother and her fiancé in an apartment for most of 2007.
¶ 5 On the other hand, Mr. Goings claims that he was "highly involved" in Child's life. He states that Mother and Child lived in his home for about six months, and that after they moved out, he "remained a part" of Child's life, "saw him on a regular basis," and watched Child two or three nights each week while Mother worked. Mr. Goings also states that he "helped financially support [Child] by buying food, groceries, [and] diapers."
¶ 6 In April of 2008, Mother was diagnosed with terminal lung cancer. Upon learning of her diagnosis, she, her fiancé, and Child moved out of the apartment they shared and moved in with Grandparents. And in anticipation of her death, Mother prepared a testamentary appointment of guardianship and conservatorship of Child in favor of Grandparents. Her testamentary appointment provided as follows:
Mr. Goings was not notified of Mother's testamentary appointment.
¶ 7 Mother died on June 19, 2008, and Grandparents took Child home with them after Mother's funeral. The next week, Grandparents filed a petition for appointment of guardianship (Guardianship Petition or Petition) to confirm and accept Mother's testamentary appointment of them as guardians and conservators of Child (Guardianship Action). On July 2, 2008, the district court confirmed their appointment (Guardianship Appointment). Later the same day, unaware of the Guardianship Action, Mr. Goings filed a separate action, before a different judge, to establish his paternity of Child in the district court (Paternity Action).
¶ 8 On July 7, 2008, Mr. Goings learned that Grandparents had been appointed as Child's guardians, and on July 8, he filed a motion to vacate the Guardianship Appointment. In his supporting memorandum, he argued that the Guardianship Appointment should be vacated because he had not received notice of the Guardianship Petition as required under section 75-5-207 of the Utah Code (Court Appointment Statute). As part of his notice argument under the Court Appointment Statute, he asserted that Grandparents obtained the confirmation of their appointment based on "false and misleading information." But while the Court Appointment Statute governs guardianship appointments made by a court, section 75-5-202.5 of the Utah Code (Testamentary Appointment Statute) governs guardianship appointments made by a parent.
¶ 9 In the Guardianship Action, the court summarily denied Mr. Goings's motion to vacate in an order dated January 5, 2009. Grandparents then filed a proposed order for the court to sign. But Mr. Goings filed an objection to the language in Grandparents' proposed order. In his objection, Mr. Goings attempted to present new arguments to support his position that the Guardianship Appointment should be vacated. Specifically, in his objection, Mr. Goings suggested for the first time that he had parental rights that were entitled to constitutional protection. The court ultimately denied his objection, explaining that it was "not well-taken" because it "primarily seeks to reargue issues" which had already been "considered and ruled upon" by the court in both the Guardianship Action and the Paternity Action. The court also noted that the "parties have had a full opportunity to develop the facts in the record and to present testimony, if they so chose."
¶ 10 Meanwhile, in the Paternity Action, on February 24, 2009 — more than six months after Grandparents were confirmed as Child's guardians — the parties stipulated to
¶ 11 Ultimately, in the Guardianship Action, the court denied both of Mr. Goings's motions to vacate the Guardianship Appointment,
¶ 12 Mr. Goings appealed to the Utah Court of Appeals. But his brief to the court of appeals contained numerous errors, including failing to cite to the record, failing to include page numbers in the Table of Contents or Table of Authorities, and failing to comply with other formatting requirements. In their response brief, Grandparents called the attention of the court to these deficiencies. Mr. Goings responded by filing a motion to amend the brief and attaching a copy of an amended brief in which he had corrected many of the errors. The court of appeals granted the motion, allowing Mr. Goings to file an amended brief, but also requiring his counsel to pay the Grandparents "their reasonable attorneys fees for the work expended in researching and preparing that portion of their brief devoted to demonstrating the inadequacy" of Mr. Goings's brief. The court of appeals then temporarily remanded the matter to the district court for a determination of reasonable attorney fees. Mr. Goings's counsel has not yet paid the Grandparents any portion of the amount the district court ultimately ordered him to pay.
¶ 13 Shortly thereafter, the court of appeals certified this case to us. Accordingly, we issued an order on January 17, 2012, granting the parties permission "to submit supplemental or replacement briefs if they choose." But we explained that "such a brief should be submitted only if the posture before the Supreme Court creates a material difference in the argument presented."
¶ 14 Mr. Goings's counsel submitted a supplemental brief, in which he acknowledges that "there is no material difference in the arguments as presented in Mr. Goings'[s] brief previously filed in this matter due to the certification and transfer of this case to the Supreme Court." But Mr. Goings's counsel goes on to argue that, under rule 40(b) of the Utah Rules of Appellate Procedure, the court of appeals should not have sanctioned him without providing him with notice and an opportunity for a hearing. Under section 78A-3-102(3)(b) of the Utah Code, we have jurisdiction to review the district court's actions.
¶ 15 We review questions of statutory interpretation for correctness.
¶ 16 Mr. Goings appeals the district court's denial of his motion to vacate the Guardianship Appointment. We first consider whether Mr. Goings has standing to bring this appeal. Next, because Mr. Goings did not preserve any of the issues he presents to us, we consider whether the court committed plain error in denying his motion to vacate the Guardianship Appointment. Finally, we do not consider whether the court of appeals properly sanctioned Mr. Goings's counsel because we lack jurisdiction to consider this issue.
¶ 17 Grandparents argue that, because Mr. Goings was not Child's legal parent at the time Grandparents were appointed as guardians, and because he never formally filed a motion to intervene in this case, he lacked standing to object to the Guardianship Appointment. Accordingly, Grandparents argue that Mr. Goings lacks standing to bring this appeal. We disagree.
¶ 18 Section 75-5-203 of the Utah Code permits "[a]ny person interested in the welfare of a minor" to file a written objection to a guardianship appointment. Thus, section 75-5-203 provides a statutory right to object to a guardianship appointment. Further, the statute confers intervenor status on any person who files an objection pursuant to it.
¶ 19 In this case, Mr. Goings challenged the Guardianship Appointment with a motion to vacate. Because the statute permits "any person interested in the welfare of" Child to object to the Guardianship Appointment, Mr. Goings was entitled to challenge the appointment regardless of whether or not he was Child's legal parent at that time. Further, although he captioned his motion as a "motion to vacate" rather than an "objection," we consider his motion to be an objection filed pursuant to section 75-5-203.
¶ 20 Acknowledging that he did not preserve most of the issues he presents in his brief, Mr. Goings argues that we should nonetheless reach them because the district court committed plain error in denying his motion to vacate the Guardianship Appointment.
¶ 21 To preserve an issue for appeal, "the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue."
¶ 22 Thus, when a party raises an issue on appeal that was not preserved below, we review it for plain error.
¶ 23 In denying Mr. Goings's motion to vacate the Guardianship Appointment, the district court concluded that he was not Child's legal parent because he had not established a parent-child relationship in one of the ways enumerated in the Utah Uniform Probate Code (Probate Code). Specifically, the court noted that "[n]o father is named on the birth certificate.... Mr. Goings [never] voluntarily execute[d] or file[d] ... a Declaration of Paternity.... [nor did he] adjudicate his paternity.... [or] meet any of the Utah Uniform Parentage Act requirements to be acknowledged as a presumed legal father." Accordingly, the district court concluded that, at the time of the Guardianship Appointment, Mr. Goings was not a "parent," but was instead an "alleged father."
¶ 25 In connection with this argument, Mr. Goings argues that the Guardianship Petition is invalid because it did not assert that he had been adjudged incapacitated as required by the Testamentary Appointment Statute, under which newly appointed guardians must file an affidavit of acceptance stating "the names of the parents of the minor and that both are dead or that any surviving parent has been adjudged incapacitated."
¶ 26 We first consider whether Mr. Goings preserved these issues. To preserve an issue for appeal, "the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue."
¶ 27 In this case, Mr. Goings never specifically argued before the district court that the Petition was invalid because it did not state that Child's parents are both dead or that he, as the surviving parent, had been adjudged incapacitated, as the Testamentary Appointment Statute requires.
¶ 28 Thus, although the district court found that Mr. Goings was an "alleged father" rather than Child's legal parent, it did so in the context of his notice claim under the Court Appointment Statute. It never made that finding for purposes of a claim under the Testamentary Appointment Statute. Indeed, the district court never had the opportunity to rule on Mr. Goings's claim that the Petition was invalid for failing to make the required assertion that Child's parents are dead or adjudged incapacitated. Nor did the court have the opportunity to rule on his related claim that the court violated due process principles when it considered only the
¶ 29 Second, having concluded that Mr. Goings did not preserve these issues, we consider whether the court committed plain error when it confirmed the Guardianship Appointment even though the Petition did not allege that Mr. Goings had been adjudged incapacitated. To show that the court committed plain error, Mr. Goings must show not only that an error exists, but also that "the error should have been obvious to the trial court."
¶ 30 In defining "parent," the Probate Code relies on language in other sections of the Utah Code. Specifically, the Probate Code defines "parent" as "any person ... who would be entitled to take if the child died without a will."
¶ 31 But Mr. Goings asserts that the district court was required to consider whether he had established his legal parentage in some additional way.
¶ 32 On appeal, Mr. Goings argues that the Guardianship Petition contained fraudulent assertions, and that the district court therefore erred in confirming the Guardianship Appointment. Specifically, Grandparents stated in their Petition that Mr. Goings "has never declared paternity, was never married to [Mother], is not an adjudicated father, and has not lived with nor provided child support to the minor." Mr. Goings argues that "[a]t the time of their Petition, [Grandparents] knew or had reason to know that [Child] had in fact lived in Mr. Goings'[s] home for the majority of his life and that Mr. Goings had provided substantial financial and familial support throughout [Child's] life." He contends that "[a]fter learning that [Grandparents] had made false statements in their Petition concerning Mr. Goings'[s] relationship with [Child]," the court "rightfully should have struck [Grandparents'] pleadings" and vacated the Guardianship Appointment.
¶ 33 We first consider whether Mr. Goings preserved this issue.
¶ 34 Second, having concluded that Mr. Goings did not preserve this issue, we consider whether the court committed plain error when it did not vacate the Guardianship Appointment after learning that the Petition contained allegedly false assertions.
¶ 35 Fraud involves "a false representation of an existing material fact."
¶ 36 Under the Testamentary Appointment Statute, a testamentary appointment becomes effective when the appointment is filed with the court and the newly appointed guardian files a document that contains six particular assertions.
¶ 37 These are the only assertions that the statute requires a newly appointed guardian to make before a testamentary appointment can become effective. The statute requires no assertions regarding whether an alleged father has lived with or provided support for the minor. Thus, we conclude that assertions regarding an alleged father's involvement in a minor's life are not "significant or essential" to the validity of a guardianship petition under the Testamentary Appointment Statute. Accordingly, even if they are allegedly false, such statements do not constitute fraud. Consequently, Mr. Goings has not shown that an error exists in the district court's decision to confirm the Guardianship Appointment, and thus, he has failed to show that the court committed plain error in declining to vacate the Petition on that basis.
¶ 38 Finally, Mr. Goings argues that, even if the court did not err when it declined to vacate the Guardianship Appointment, it erred in awarding custody of Child to Grandparents. Specifically, Mr. Goings argues that a guardian of a minor is not necessarily entitled to custody.
¶ 39 First, we consider whether Mr. Goings preserved this issue.
¶ 40 Second, we consider whether the court committed plain error when it awarded custody of Child to Grandparents.
¶ 41 Our "primary objective" in interpreting statutes "is to give effect to the legislature's intent. To discern legislative intent, we look first to the statute's plain language."
¶ 42 Section 75-5-209(2) of the Utah Code provides that a guardian "has the powers and responsibilities of a parent who has not been deprived of custody." Thus, guardianship of a minor, by its very nature, includes custody of the minor. Accordingly, Mr. Goings has not shown that an error exists in the district court's decision to award custody of Child to Grandparents, and we conclude that the court did not commit plain error in making that decision.
¶ 43 Mr. Goings's counsel argues that the court of appeals erred in requiring him to pay attorney fees to Grandparents without first providing him with notice and a hearing. As discussed below, we lack jurisdiction over this matter because Mr. Goings's counsel failed to invoke our jurisdiction. But even if we had jurisdiction, we would decline to consider this issue because it is outside the scope of our order permitting supplemental briefing and is therefore not properly before us.
¶ 44 After the court of appeals certified this case to us, we issued an order granting the parties permission "to submit supplemental or replacement briefs if they so choose," but stated that "such a brief should be submitted only if the posture before the Supreme Court creates a material difference in the argument presented." Pursuant to that order, Mr. Goings's counsel submitted a supplemental brief, in which he argues that the court of appeals should not have sanctioned him without providing him with notice and an opportunity for a hearing. Specifically, Mr. Goings's counsel relies on rule 40(b) of the Utah Rules of Appellate Procedure, which provides that "[t]he court may, after reasonable notice and an opportunity to show cause to the contrary, and upon hearing, if requested, take appropriate action against any attorney... for failure to comply with the[] rules." Thus, Mr. Goings's counsel claims that the Utah Court of Appeals improperly sanctioned him because he "was not provided prior notice or any opportunity to show cause or allowed to request a hearing on the issue," and therefore he "has been effectively sanctioned in this case without due process of law and in direct violation of [r]ule 40(b)."
¶ 45 Our "appellate jurisdiction must be contemporaneously and properly invoked by some distinct method" before we may review the decision of a lower court.
¶ 46 In this case, Mr. Goings appealed the district court's decision to reconfirm the validity of the Guardianship Appointment, and the court of appeals certified the case to us.
¶ 47 We note that the traditional method of invoking our appellate jurisdiction to review the sanctions issue was foreclosed in this case. Because the underlying issues in Mr. Goings's appeal had not yet been resolved, his counsel could not have challenged the court of appeals' sanctions with a petition for a writ of certiorari.
¶ 48 But even if Mr. Goings's counsel had properly invoked our jurisdiction to review the sanctions issue, we would decline to consider it. We granted the parties permission to submit supplemental briefs only "if the posture before the Supreme Court creates a material difference in the argument presented." And in this case, the posture before our court does not create a material difference in the arguments the parties presented. In fact, the supplemental brief submitted by Mr. Goings's counsel explicitly acknowledges that "there is no material difference in the arguments as presented in Mr. Goings'[s] brief previously filed in this matter due to the certification and transfer of this case to the Supreme Court of the State of Utah." Similarly, Grandparents point out that "neither they nor Mr. Goings have cause to raise anything which would amount to a material difference in the arguments presented in the amended initial briefing." Accordingly, they "do not believe this is a proper matter for Mr. Goings to raise in supplemental briefing." We agree.
¶ 49 Nonetheless, Mr. Goings's counsel attempts to argue that the posture before the Supreme Court creates a material difference regarding the issue of the sanction imposed
¶ 50 But the fact that this case is now before us instead of the court of appeals does not create a material difference in the arguments Mr. Goings originally presented regarding the Guardianship Action. In other words, the sanction imposed by the court of appeals does not relate to Mr. Goings's appeal of the district court's denial of his motion to vacate the Guardianship Appointment. Thus, the posture before this court does not create a material difference in the arguments Mr. Goings presented in his brief to the court of appeals.
¶ 51 We affirm the district court's denial of Mr. Goings's motion to vacate the confirmation of Grandparents as Child's guardians. We conclude that Mr. Goings received statutory intervenor status when he filed his objection to the Guardianship Appointment. But we also conclude that Mr. Goings did not preserve any of the issues he presents in this appeal, and that he failed to show that the court committed plain error in denying his motion to vacate the Guardianship Appointment. Finally, because we lack jurisdiction over the issue, we do not consider whether the court of appeals properly sanctioned Mr. Goings's counsel.
¶ 52 We note, however, that our opinion in this case does not terminate Mr. Goings's parental rights. Since the Guardianship Appointment, Mr. Goings has been adjudged Child's legal father. And as the district court noted, "Mr. Goings's parental rights arose upon his adjudication and are residual, noncustodial rights."
Chief Justice DURRANT authored the opinion of the Court, in which Associate Chief Justice NEHRING, Justice DURHAM, Justice PARRISH, and Justice LEE joined.
In contrast, the Testamentary Appointment Statute is titled "Appointment of guardian by written instrument," and permits a parent to appoint a guardian by written instrument. The Testamentary Appointment Statute does not require that notice be given to anyone before the testamentary appointment becomes effective. See UTAH CODE § 75-5-202.5.
The Utah Court of Appeals has recognized an exception to the preservation rule "when the central issue to be decided concerns the best interests of a child." T.B. v. M.M.J. (State ex rel. R.N.J.), 908 P.2d 345, 350 (Utah Ct.App.1995) superseded by statute on other grounds as stated in M.B. v. C.E.H. (In re E.H.H.), 2000 UT App 368, ¶ 16, 16 P.3d 1257. But we have never recognized this exception. In fact, we recently declined to consider an unpreserved issue even though it affected the interests of a minor. A.O. v. State (State ex rel. K.F.), 2009 UT 4, ¶ ¶ 1, 59, 201 P.3d 985 (declining to review the juvenile court's decision to change a minor's custodial situation because "the mother clearly did not preserve a challenge to the adequacy of the juvenile court's findings"). Accordingly, we decline to recognize such an exception to our preservation requirement.
