White v. White , 402 P.3d 136 ( 2017 )

2017 UT App 140THE UTAH COURT OF APPEALS
DEAN WHITE,
Appellant,
v.
JULIE DAWN WHITE,
Appellee.
Opinion
No. 20160273-CA
Filed August 3, 2017
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 094401518
Dean White, Appellant Pro Se
Terry R. Spencer, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
KATE A. TOOMEY concurred. JUDGE J. FREDERIC VOROS JR.
concurred, with opinion. 1
ROTH, Judge:
¶1 As part of the division of marital property in divorce
proceedings, the district court awarded Dean White all interest
in a limited liability company, which owned a residential
property as its only asset. The primary issue on appeal is
whether the district court properly denied Dean’s claim to a
homestead exemption in proceeds from the later sale of that
residence. Dean also raises an issue regarding the allegedly
improper service of pleadings upon him, and he requests an
1. Judges Stephen L. Roth and J. Frederic Voros Jr. participated
in this case as members of the Utah Court of Appeals. They
retired from the court before this decision issued.
White v. White
award of attorney fees on appeal. We affirm the district court’s
judgment and deny the request for attorney fees.
BACKGROUND
¶2 Dean White and Julie Dawn White 2 divorced in February
2010. Several years before their divorce, the parties purchased a
rental property in Lehi, Utah (the Property). In 2007, the parties
formed a limited liability company known as “The White
Empire, LLC” (the LLC), having the parties as its only members.
They then transferred ownership of the Property to the LLC.
¶3 The divorce decree awarded the LLC and “all right, title
and interest” in the Property to Dean, and he began residing in
the Property. Dean removed Julie as a member of the LLC, but
the Property remained titled in the LLC’s name, with Dean as
the sole member.
¶4 Between the entry of the divorce decree in early 2010 and
November 2015, the district court entered various judgments
against Dean totaling approximately $53,000. Dean failed to
satisfy those judgments.
The Charging Order
¶5 In an attempt to recover on the judgments, Julie filed a
motion in November 2015 seeking a charging order against
Dean’s interest in the LLC pursuant to section 48-3a-503 of the
Utah Revised Uniform Limited Liability Company Act. The
charging order would have, if granted, effectively placed a lien
upon Dean’s membership interest in the LLC. See Utah Code
2. Because the parties share the same last name, we refer to them
by their first names for clarity.
20160273-CA 2 2017 UT App 140White v. White
Ann. § 48-3a-503(1) (LexisNexis 2015). 3 Julie requested that the
court order the foreclosure of the lien and the sale of Dean’s
interest in the LLC if he did not satisfy her judgments against
him within thirty days.
¶6 Dean responded that the Property was subject to a
homestead exemption pursuant to Utah Code sections 78B-5-503
and -504. He represented that he had filed a Homestead
Exemption Declaration against the Property about two weeks
after Julie filed her motion. In the declaration, he claimed the
Property as his primary personal residence, which entitled him
under the statute to a $30,000 exemption from judicial liens,
execution, or forced sale. Dean asserted that taking into account
the mortgage on the Property, its net value amounted to
approximately $28,000, or less than the $30,000 statutory cap.
3. Utah Code section 48-3a-503 provides,
On application by a judgment creditor of a member
or transferee [of a limited liability company], a
court may enter a charging order against the
transferable interest of the judgment debtor for the
unsatisfied amount of the judgment. Except as
otherwise provided in Subsection (6), a charging
order constitutes a lien on a judgment debtor's
transferable interest and, after the limited liability
company has been served with the charging order,
requires the limited liability company to pay over
to the person to which the charging order was
issued any distribution that otherwise would be
paid to the judgment debtor.
Utah Code Ann. § 48-3a-503(1) (LexisNexis 2015) (emphasis
added). This section further provides that a charging order “does
not deprive any member or transferee of the benefit of any
exemption laws applicable to the transferable interest of the
member or transferee.” Id. § 48-3a-503(7).
20160273-CA 3 2017 UT App 140White v. White
And, according to Dean, because the Property was the LLC’s
only asset, his homestead exemption prevented Julie from
executing on his LLC membership to recover any portion of her
judgments against him.
¶7 In January 2016, before the hearing scheduled on Julie’s
charging order motion, the LLC sold the Property. Dean then
dissolved the LLC. As the LLC’s sole member, Dean received the
$8,621.30 in net proceeds from the sale.
¶8 Julie filed a motion asserting that the sale of the Property
amounted to a fraudulent transfer under the Utah Fraudulent
Transfer Act and requesting that the court either void the sale or
“issue a writ of garnishment on any account held in [Dean’s]
name to which [Dean] transferred any of the sale proceeds” to
allow her to collect on the judgments against him. Dean argued
in response that the court should dismiss Julie’s request for a
charging order because the LLC had been dissolved and the sale
proceeds were covered by the homestead exemption, which left
Julie with nothing from which to recover.
¶9 The assigned commissioner held a hearing on the parties’
motions. The commissioner determined that the sale of the
Property was fraudulent and conducted in bad faith. The
commissioner also determined that Dean was not entitled to a
homestead exemption, because the Property was held in the
LLC’s name, not his, and because a homestead exemption could
not be claimed “against a former spouse.” The commissioner
recommended that Dean be ordered to pay Julie all net proceeds
from the sale of the Property.
¶10 Dean objected to the commissioner’s recommendation
and requested a hearing before the district court. The district
court entered an order accepting the commissioner’s
recommendations but also scheduled a hearing regarding Dean’s
objections. At the objection hearing, Dean argued that he was
entitled to a homestead exemption on the sale proceeds because
20160273-CA 4 2017 UT App 140White v. White
the Property was his primary personal residence. He also
contended that the identity of a home’s titleholder or owner is
irrelevant because the homestead exemption statutes do not
“make any restrictions on who the owner is, who the house is
titled to, anything of that nature.” Julie responded that the
commissioner correctly determined that Dean was not entitled to
a homestead exemption because the Property “was in the name
of a company” that Dean owned, not Dean himself. She also
argued that according to our holding in Wiles v. Wiles, 871 P.2d
1026 (Utah Ct. App. 1994), “a homestead exemption doesn’t
apply in a domestic case.”
¶11 The district court denied Dean’s objection, concluding
that because the Property was not in Dean’s name, he was not
entitled to a homestead exemption in the Property or in the
proceeds from its sale. The court also agreed that Wiles
precluded Dean from claiming a homestead exemption in
connection with divorce proceedings.
The Improper Service Allegation
¶12 Dean alleges that Julie failed to properly serve him one
legal memorandum and two proposed orders, all related to the
district court’s ultimate determination that he was not entitled to
the exemption. The memorandum to which he refers was Julie’s
reply to his assertion of the homestead exemption. In it she
argued that Wiles precluded the homestead exemption from
being used against ex-spouses. The two proposed orders were
submitted by Julie following, respectively, the charging order
hearing before the commissioner and the hearing before the
district court on Dean’s objection to the commissioner’s
recommendation.
¶13 Dean asserts that he notified both the commissioner and
the district court that he had not received the legal
memorandum or the proposed orders from Julie and requested
that she be ordered to provide verification that she had served
20160273-CA 5 2017 UT App 140White v. White
them. Dean contends that neither the commissioner nor the
district court required Julie to provide verification and that, as a
result, neither “ever received . . . evidence to validate that the
emails were actually sent.”
¶14 Dean appeals both the district court’s determination that
he was not entitled to the homestead exemption and its refusal
to require Julie to provide verification that she sent him the
pleading and two proposed orders.
ISSUES AND STANDARDS OF REVIEW
¶15 Dean argues that the district court erred when it
determined that he was not entitled to a homestead exemption
on the Property. The determination of whether a claimant is
entitled to a homestead exemption is a question of law, which
we review for correctness. See Houghton v. Miller, 2005 UT App
303, ¶ 5, 118 P.3d 293. Dean also challenges the district court’s
alternative determination that under our decision in Wiles v.
Wiles, 871 P.2d 1026 (Utah Ct. App. 1994), a homestead
exemption cannot be asserted “against a former spouse.”
Because we resolve the exemption issue on the first ground, we
do not reach the Wiles issue.
¶16 Next, Dean argues that the district court erred when it
failed to require Julie to produce verification that she had served
him with certain pleadings. We review this kind of decision for
abuse of discretion. Cf. Cabaness v. Thomas, 2010 UT 23, ¶ 31, 232
P.3d 486 (explaining that we review a “district court’s refusal to
consider evidence or to exclude evidence” for abuse of
discretion). However, to merit relief, Dean must do more than
simply allege error; he must also demonstrate that the alleged
error was harmful. See Portfolio Recovery Assocs., LLC v. Migliore,
2013 UT App 255, ¶ 15, 314 P.3d 1069.
20160273-CA 6 2017 UT App 140White v. White
¶17 Finally, Dean requests that, should he prevail, we award
him attorney fees and costs on appeal and reverse the district
court’s award of attorney fees in Julie’s favor. Julie also requests
her fees and costs on appeal if she prevails on the basis that she
prevailed and was awarded fees below. Because Dean is
appearing pro se, he is not entitled to an award of attorney fees.
See Osborne v. Osborne, 2011 UT App 150, ¶ 10, 260 P.3d 202(explaining that a “pro se litigant . . . is not entitled to an award
of attorney fees”). Otherwise, a trial court’s decision to grant or
deny attorney fees in a domestic case is within its “sound
discretion.” See Davis v. Davis, 2003 UT App 282, ¶ 9, 76 P.3d 716(citation and internal quotation marks omitted). “Generally,
when the trial court awards fees in a domestic action to the party
who then substantially prevails on appeal, fees will also be
awarded to that party on appeal.” Fish v. Fish, 2016 UT App 125,
¶ 30, 379 P.3d 882 (citation and internal quotation marks
omitted).
ANALYSIS
I. The Homestead Exemption
¶18 There is no homestead exemption in the common law;
homestead rights are instead the product of legislation and are
therefore governed by statute—in Utah, the Utah Exemptions
Act (the Act). See Utah Code Ann. §§ 78B-5-503 to -504
(LexisNexis 2012); P.I.E. Emps. Fed. Credit Union v. Bass, 759 P.2d
1144, 1145 (Utah 1988). “The general purpose of a homestead
exemption is to protect citizens and their families from the
miseries of destitution” through “execution or forced sale” of
property that is either owned or occupied by the claimant. P.I.E.
Emps., 759 P.2d at 1145. The exemption also “giv[es] the
homestead claimant the right to claim proceeds of the sale of his
homestead as exempt for a period of one year from the receipt
thereof . . . to permit him to acquire another homestead and to
pay therefor with such proceeds.” Homeside Lending, Inc. v.
20160273-CA 7 2017 UT App 140White v. White
Miller, 2001 UT App 247, ¶ 28 n.6, 31 P.3d 607 (emphasis,
citation, and internal quotation marks omitted).
¶19 Dean contends that the district court erred when it
determined that he was not entitled to a homestead exemption.
Dean argues that he fulfilled all the statutory requirements for
the exemption by occupying the Property as his primary
personal residence and that “who or what the property was
titled to” is irrelevant.
¶20 Dean asserts that he qualifies for an exemption under the
“primary personal residence” provision of Utah Code section
78B-5-503(2)(a):
An individual is entitled to a homestead exemption
consisting of property in this state in an amount
not exceeding: (i) $5,000 in value if the property
consists in whole or in part of property which is
not the primary personal residence of the
individual; or (ii) $30,000 in value if the property
claimed is the primary personal residence of the
individual.
Utah Code Ann. § 78B-5-503(2)(a) (emphasis added). Dean
asserts that he fulfilled “all the criteria” of section 503(2)(a)(ii),
“regardless of who or what the Property was titled to,” because
the Property was his “primary personal residence; real property;
and [he] had all interest in the real property because it was
awarded to [him] in the divorce decree.”
¶21 It is true that the exemption may attach to either “title” or
“possession.” Panagopulos v. Manning, 69 P.2d 614, 619 (Utah
1937) (explaining that there “are two bases or interests in real
property upon which a homestead right may be predicated and
which may give rise to claim of homestead—title and
possession,” and that “[t]he homestead exemption protects alike
both of the interests, and may be founded or asserted to protect
20160273-CA 8 2017 UT App 140White v. White
either one”). But the homestead exemption protects “a right of
sufficient value to be coveted by creditors,” one that “can be sold
under execution.” See id. As the supreme court explained in
Panagopulos, “a mere naked possession without any title
whatever, will support a homestead right against all the world
except the owner, on the principle that a right of sufficient value
to be coveted by creditors is of value to the debtor sufficient to
be protected.” Id.¶22 Thus, as we explain below, the homestead exemption is a
personal right based upon an individual’s interest in property.
This requires that the exemption be claimed by a person as
opposed to an entity and that the person claiming the exemption
have a legally cognizable interest or estate in the subject
property. To prevail on appeal, Dean must therefore persuade us
that the fact that the LLC owned and held title to the Property
had no bearing on his ability to personally claim the Property as
his homestead. Here, although Dean himself qualifies as an
“individual” under the Act, the LLC, not Dean, owned the
Property at all relevant times, and he has failed to persuade us
that he had a sufficient interest in the Property and the proceeds
from its sale to entitle him to the exemption.
A. Ownership of the Property
¶23 The district court ruled that under the Act, Dean was not
entitled to a homestead exemption claim where the Property was
in the LLC’s name, not Dean’s. Dean contends that the LLC’s
title is irrelevant to his entitlement to the exemption. But Dean
does not contest that the LLC was the owner of the Property.
And we conclude that the identity of the owner is relevant
because the Act’s plain language limits entitlement to the
exemption to a person, not an entity.
¶24 “It is well settled that when faced with a question of
statutory interpretation, our primary goal is to evince the true
intent and purpose of the Legislature,” and “[t]he best evidence
20160273-CA 9 2017 UT App 140White v. White
of the legislature’s intent is the plain language of the statute
itself.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14,
267 P.3d 863 (citations and internal quotation marks omitted).
The plain language of the Act makes clear that the exemption
can be claimed only by a human being; it is not designed to
protect a business entity from creditors. This is evident from the
Act’s repeated use of the term “individual” to describe who is
entitled to the exemption. See Hutter v. Dig-It, Inc., 2009 UT 69,
¶ 32, 219 P.3d 918 (“When interpreting a statute, we assume,
absent a contrary indication, that the legislature used each term
advisedly according to its ordinary and usually accepted
meaning.”). Although the Act does not define the term
“individual,” the noun “individual” is reasonably understood as
“a single human being, as distinguished from a group.”
Individual, Dictionary.com, http://www.dictionary.com/browse
/individual [https://perma.cc/3AEF-6MSX]. And Garner’s
Dictionary of Legal Usage explains that “individual is best
confined to contexts in which the writer intends to distinguish
the single (noncorporate) person from the group or crowd.”
Individual, Garner’s Dictionary of Legal Usage 448 (3d ed. 2011).
¶25 Other provisions of the Act itself make it indisputable that
the “individual” who may claim the exemption is not an entity.
Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099 (explaining that we
“read the plain language of a statute . . . as a whole and interpret
its provisions in harmony with other provisions in the same
statute” (ellipsis in original) (brackets, citation, and internal
quotation marks omitted)). For example, the Act provides that
“[a]n individual is entitled to a homestead exemption” up to
$30,000 in value “if the property claimed is the primary personal
residence of the individual.” Utah Code Ann. § 78B-5-
503(2)(a)(ii) (LexisNexis 2012) (emphases added). It defines
“primary personal residence” as “a dwelling or mobile home . . .
in which the individual and the individual’s household reside” and
then defines “household” as “a group of persons related by blood
or marriage living together in the same dwelling.” Id. § 78B-5-
20160273-CA 10 2017 UT App 140White v. White
503(1)(a), (c) (emphases added). While a human being can reside
with persons to whom he or she is related, an entity, such as a
company, cannot. And an LLC is a business entity, not an
“individual” who is part of “a group of persons related by blood
or marriage.” Thus, the ordinary, nontechnical meaning of the
term “individual,” as employed in the relevant portions of the
Act, plainly refers to a human being—a person—and not a
company such as the LLC.
¶26 As a result, Dean’s argument that the LLC’s ownership of
the Property was irrelevant fails. Because the LLC holds title and
is the owner of the Property, Dean cannot claim entitlement to
the exemption based upon title ownership. The LLC itself did
not qualify as an “individual” under the Act and therefore could
not claim entitlement to the exemption. And although Dean had
an interest in the LLC through his membership, Dean does not
claim that he had any ownership interest in the Property by
virtue of his membership in the LLC, and the purposeful
attenuation of the relationship between the property of an LLC
and its members would seem to preclude it. Cf. CFD Payson, LLC
v. Christensen, 2015 UT App 251, ¶ 9, 361 P.3d 145 (explaining
that under the repealed Utah Revised Limited Liability
Company Act, which was in effect at the time Dean and Julie
formed the LLC, a company formed under the act was a “legal
entity distinct from its members” and that “[a] membership
interest in an LLC . . . does not give the member any interest in
the real property owned by the company” (citations and internal
quotation marks omitted)). As a result, Dean could not claim
entitlement to the exemption through his ownership of the LLC. 4
4. Dean also argues that, as a matter of good policy, we ought to
nonetheless interpret the homestead exemption’s statutory
provisions liberally “‘to accomplish its beneficent purpose.’”
(Quoting In re Cornia, No. 13-22364, 2013 WL 1788053, at *3
(Bankr. D. Utah Apr. 26, 2013).) But because “the plain
(continued…)
20160273-CA 11 2017 UT App 140White v. White
B. Possession of the Property
¶27 Dean nevertheless argues that even if he had no title or
ownership, his possession and use of the Property as his
residence established an interest sufficient to support a
homestead exemption claim.
¶28 While we do not entirely foreclose the possibility that a
debtor in bare possession of property as a residence might
theoretically call on the protection of the Act against a creditor
who seeks to execute on whatever interest such possession might
represent, we have been unable to find a single case in Utah—
nor has Dean pointed us to any—where mere occupancy alone,
without some accompanying interest or estate in the property,
was sufficient to support an exemption claim. Rather, even in
cases where occupancy appears to be the basis of the claimant’s
entitlement, the claimant has had an interest in the property
beyond simple occupancy.
(…continued)
language . . . is unambiguous, no other interpretive tools are
needed, and our task of statutory construction is . . . at an end.”
State v. Outzen, 2017 UT 30, ¶ 12 (second ellipsis in original)
(citation and internal quotation marks omitted); see also Tesla
Motors UT, Inc. v. Utah Tax Comm’n, 2017 UT 18, ¶ 38 (explaining
that “[t]he breadth and reach of our laws are measured by the
words that were voted on by the legislature and signed into law
by the governor—not by the general function or purpose we
may ascribe to the law in retrospect” and that while “[w]e may
have a sense of the motivating consideration or ‘purpose’ of a
legislative enactment, . . . it is at most an aid in resolving
ambiguities in the law” (emphases omitted)); Wilcox v. CSX
Corp., 2003 UT 21, ¶ 8, 70 P.3d 85 (explaining that we will only
“seek guidance from the legislative history and relevant policy
considerations” if “we find the provision ambiguous” (citation
and internal quotation marks omitted)).
20160273-CA 12 2017 UT App 140White v. White
¶29 For example, our supreme court has determined that
“where title is not in the debtor, but possession is,” “possession
under a lease will sustain a claim of homestead whether the
leasehold is for a long tenure or but a single year,” because “an
owner of the leasehold estate is an owner of land” and the
leasehold’s purpose is “to secure [a person’s] family a home.” See
Panagopulos v. Manning, 69 P.2d 614, 619 (Utah 1937) (citation
and internal quotation marks omitted). In Panagopulos, although
the debtor owned a remainder interest in the property that he
occupied, the property itself was subject to a life estate in
another person, and the debtor paid to the life-estate holder an
annual rent for his use. See id. at 619–20. The supreme court
concluded that the debtor was entitled to an exemption under
these circumstances, “as long as he has exclusive occupancy of
the premises as his home.” See id. at 620.
¶30 Similarly, in Stucki v. Ellis, 201 P.2d 486 (Utah 1949), the
court addressed whether a person who did not hold record title
was nonetheless entitled to claim a homestead exemption in the
proceeds of the property’s sale. Id. at 489. A potential homestead
exemption claimant had entered into a written purchase contract
with the title owner, and the agreement required him to pay the
balance of the purchase price in monthly installments before he
would receive title to the property. Id. at 487. The claimant “went
into possession of the premises under this contract.” Id.
Thereafter, the claimant, having never acquired title, sold the
property to another, and “the consideration paid was divided
according to [the buyer and seller’s] respective interests” at the
time of the sale. Id. at 488. The court concluded that under these
circumstances, the claimant had an “equitable interest” in the
property sufficient to claim a homestead exemption in his
portion of the proceeds. Id. at 490. Although the claimant did not
hold record title, he had acquired sufficient interest where he
“purchased the premises . . . under a written contract,” which
was recognized by the original seller “as being valid and
enforceable,” and he “occup[ied] the premises as a home” with
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his family. See id. at 489–90; see also Hansen v. Mauss, 121 P. 605,
607–08 (Utah 1912) (concluding that “a homestead may be
carved out of an estate less than a fee simple,” and that a person
is entitled to an exemption as to the proceeds of a property’s sale
where he had entered into a purchase agreement for the
property, made payments that created some equity in the
property, and occupied the property with his family, even
though he did not hold legal title to the property at the time of
the property’s later sale).
¶31 In the present case, Julie sought to recover her judgments
by levying on Dean’s membership interest in the LLC, which
held title to the Property; she did not seek to execute on
whatever interest Dean might have had in the Property as a
result of his possession of it. Nonetheless, Dean apparently
claims entitlement to the exemption on the sale proceeds due to
his occupancy of the Property. But by the time the district court
ruled on the homestead exemption issue, Dean had vacated the
Property. Dean has failed to identify any interest he held in the
Property prior to sale or in the sale proceeds apart from his
earlier occupancy of the Property. In particular, he has failed to
provide any evidence that his interest in the Property as an
occupant, apparently with permission of the LLC, had any legal
substance or tangible value separate from the LLC’s ownership
that survived his relinquishment of possession as of the time of
sale. Cf. Stucki, 201 P.2d at 489–90; Panagopulos, 69 P.2d at 619–20.
¶32 Instead, to support his homestead claim, Dean has
handpicked general quotes relating to possession and occupancy
from several exemption cases without explaining their
applicability to the circumstances of his case or otherwise
providing any meaningful analysis. For example, he quotes
Houghton v. Miller, 2005 UT App 303, 118 P.3d 293, for the bare
proposition that “the occupancy of the premises . . . gives rise to
the homestead claim.” See id. ¶ 7 (citation and internal quotation
marks omitted). But Houghton did not hold that occupancy of a
property alone is sufficient; rather, we concluded in Houghton
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“that occupancy is a requirement for the [primary personal
residence] exemption,” whereby “a property owner must reside on
the premises” to be entitled to the exemption. See id. ¶ 10
(emphasis added) (citation and internal quotation marks
omitted). Dean also cites In re Cornia, No. 13-22364, 2013 WL
1788053 (Bankr. D. Utah Apr. 26, 2013), for the proposition that a
person “is entitled to claim a homestead exemption . . . as long as
it is his primary personal residence.” See id. at *3. But in that
case, the court determined that the debtor held an equitable
interest in the property as a beneficiary of the trust, which held
legal title, sufficient to invoke the personal property residence
exemption. See id. And Dean has not attempted to liken his
ownership interest in the LLC to an equitable interest in the
trust’s subject matter sufficient for the exemption. Thus, the
cases Dean relies on do not support his position.
¶33 And the fact that the homestead Dean now claims is in the
proceeds of the Property’s sale rather than in the Property itself
does not change the result. Section 78B-5-503(5)(b) provides that
“[t]he proceeds of any sale, to the amount of the exemption existing
at the time of sale, is exempt from levy, execution, or other process
for one year after the receipt of the proceeds by the person entitled
to the exemption.” Utah Code Ann. § 78B-5-503(5)(b) (LexisNexis
2012) (emphases added). Dean has not demonstrated any legal
interest in the Property at the time of sale separate from the
LLC’s ownership that would entitle him to an exemption
personally. And he has not argued that he had some individual
interest in the proceeds more tangible than whatever homestead
he may have claimed based on his bare occupancy of the
Property as a residence up to the time of sale. Rather, below and
on appeal, Dean has simply argued that, because the proceeds of
roughly $8,000 were below the $30,000 cap on the value of the
homestead exemption applicable to property used as a primary
residence, they are unavailable to satisfy any judgment. But this
argument presupposes that Dean had established a legal interest
in the Property separate from the LLC’s—one sufficient to
20160273-CA 15 2017 UT App 140White v. White
provide him with some claim to the LLC’s proceeds. As we have
explained, he has not done so. Accordingly, we are not
persuaded that Dean has any interest in the proceeds of the sale
to which a claim of homestead could attach.
¶34 In sum, Dean has not shown that he was entitled to claim
a homestead exemption in either the Property or the proceeds of
its sale that would shield all or any portion of them from Julie’s
attempts to recover her judgments against him. We therefore
affirm the district court’s determination that Dean did not
qualify for the homestead exemption due to the LLC’s title
ownership of the Property.
II. Improper Service
¶35 Dean next argues that Julie “failed to serve several papers
and pleadings” on him. He cites one memorandum and two
proposed orders, all three apparently related to the district
court’s ultimate decision to rule in Julie’s favor on the homestead
exemption issue. He argues that he requested that both the
commissioner and the district court require Julie to produce
verification that the pleadings were sent to him via email but
that “[n]either the Judge nor Commissioner has ever received
some form of evidence to validate that the emails [with the
pleading and proposed orders] were actually sent.” However,
Dean does not identify any relief he seeks, nor does he allege any
harm he suffered as a result. Rather, he argues that he requested
verification of service of certain documents and the court never
received any such verification from Julie. But “we will not
reverse a judgment merely because there may have been [an]
error; reversal occurs only if the error is such that there is a
reasonable likelihood that, in its absence, there would have been
a result more favorable to the complaining party.” Portfolio
Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 15, 314 P.3d
1069 (citation and internal quotation marks omitted).
20160273-CA 16 2017 UT App 140White v. White
¶36 As a result, Dean must demonstrate that he suffered harm
from the district court’s failure to require Julie to provide
verification of service. See id. He has not even attempted to do so.
We recognize that Dean is appearing pro se, and we therefore
accord him “every consideration that may reasonably be
indulged.” See Golden Meadows Props., LC v. Strand, 2010 UT App
257, ¶ 3, 241 P.3d 375 (citation and internal quotation marks
omitted). Nonetheless, we cannot carry his burden of persuasion
for him. Therefore, we are unable to conclude that “any abuse of
discretion by the district court in denying [his] request” would
merit reversal. See Portfolio Recovery Assocs., 2013 UT App 255,
¶ 15.
III. Attorney Fees
¶37 Finally, Dean requests that we award him attorney fees on
appeal, “reverse the fees awarded [to Julie], and award them in
[his favor], as a deduction against previous judgments that
[Julie] is trying to collect.” As we explained above, see supra ¶ 17,
Dean has appeared pro se and is therefore not entitled to an
award of attorney fees. We decline his request for fees on that
basis. See Osborne v. Osborne, 2011 UT App 150, ¶ 10, 260 P.3d
202 (explaining that a “pro se litigant . . . is not entitled to an
award of attorney fees”). Further, we decline to disturb the
court’s award of fees to Julie below. “The decision to award
attorney fees and the amount thereof rests primarily in the
sound discretion of the trial court.” Wall v. Wall, 2007 UT App 61,
¶ 24, 157 P.3d 341 (citation and internal quotation marks
omitted). The district court awarded fees to Julie on the basis of
Dean’s bad faith, a determination that Dean has not challenged
on appeal. The court’s decision therefore stands.
¶38 Julie also requests her fees on appeal. Julie prevailed
below, and the district court awarded her fees based upon
20160273-CA 17 2017 UT App 140White v. White
Dean’s bad faith. We therefore award Julie her fees on appeal. 5
See Fish v. Fish, 2016 UT App 125, ¶ 30, 379 P.3d 882 (“Generally,
when the trial court awards fees in a domestic action to the party
who then substantially prevails on appeal, fees will also be
awarded to that party on appeal.” (citation and internal
quotation marks omitted)); see also Bresee v. Barton, 2016 UT App
220, ¶ 66, 387 P.3d 536 (awarding attorney fees on appeal to the
prevailing party where they were “awarded fees under the bad-
faith attorney fee statute . . . below and have prevailed on that
issue on appeal”).
CONCLUSION
¶39 We conclude that the district court did not err when it
determined that Dean was not entitled to a homestead
exemption on the Property or the proceeds from its sale. We also
conclude that the district court did not abuse its discretion when
it failed to request from Julie verification of proof of service for
certain pleadings. Finally, we award Julie her attorney fees and
costs on appeal. Affirmed.
VOROS, Judge (concurring):
¶40 I concur with the majority opinion. I write only to identify
the fatal flaw in Dean’s argument as I see it.
¶41 Dean claims a homestead exemption. Under the Utah
Exemptions Act, “‘exemption’ means protection from subjection
5. Julie also requests that we “classify all attorney’s fees due and
owing in this case as ‘family support,’ so that the sums may be
garnished from Dean’s income.” Julie has provided no legal
basis for this request on appeal. However, the court on remand
may, in its discretion, address the issue.
20160273-CA 18 2017 UT App 140White v. White
to a judicial process to collect an unsecured debt.” Utah Code
Ann. § 78B-5-502(3) (LexisNexis 2012). Thus, to be exempt from
execution, an interest must be of the sort that is subject to
execution. And I cannot see that Dean held any interest in the
Property that would be subject to execution. Dean does not claim
a freehold estate, a leasehold estate, a future interest, an
easement, an equitable interest under a purchase contract, or a
beneficial interest under a trust. At most, he was a tenant at will.
A tenancy at will could conceivably have some negligible value.
See, e.g., Utah Optical Co. v. Keith, 56 P. 155, 158 (Utah 1899). But
Dean has placed no evidence before the court of what that value
might be.
¶42 In any event, the subject of this dispute is not the
proceeds of the sale of the Property but the proceeds of the
dissolution of the LLC. An LLC is, of course, “an entity distinct
from its member or members.” Utah Code Ann. § 48-3a-104(1)
(LexisNexis 2015). And here, the LLC, not Dean himself, owned
the Property. Julie obtained a charging order against Dean’s
transferable interest in the LLC, see id. § 48-3a-503. A member’s
interest in an LLC is a “transferable interest,” and a “transferable
interest is personal property.” See id. § 48-3a-102(29); id. § 48-3a-
501. The homestead exemption’s reach does not extend to
personal property but is limited to interests in real property,
related water rights, a mobile home in which the claimant
resides, and the proceeds of the sale of exempt property for one
year. See id. § 78B-5-503 (LexisNexis 2012). Thus, the homestead
exemption does not protect a transferable interest in an LLC. 6
¶43 In short, Dean held no interest in real property subject to
execution and thus no interest in real property needing
protection from execution. He held an interest in an LLC, which
6. The Utah Exemptions Act does protect specified personal
property, but under provisions not at issue here. See, e.g., Utah
Code Ann. § 78B-5-505 (LexisNexis 2012).
20160273-CA 19 2017 UT App 140White v. White
is personal property; the homestead exemption does not protect
personal property; therefore, it does not protect Dean’s interest
in the LLC.
20160273-CA 20 2017 UT App 140