RESPONDENT’S MOTION TO SET ASIDE SO-ORDERED STIPULATION
Hearing Requested
Civil No. 234900089
Judge Sarah Mitchell
Commissioner James Larson
Respondent, Emily Carter, pro se, moves this Court pursuant to Utah R. Civ. P. § 60(b) subsections (1), (3), (4), and (5) for an order to set aside the order appointing the Special Master and all subsequent orders issued by the Special Master in this case. The following motion outlines the grounds for this request, supported by legal principles and factual circumstances.
Introduction
On November 1, 2023, Judge Sarah Mitchell signed an Order Resolving Petition to Modify and Motion to Enforce, drafted by Petitioner, allegedly based on agreements reached during a mediation on October 15, 2022. This mediation addressed issues in the Petition to Modify the parties’ Decree of Divorce, Parenting Plan, and Visitation Schedule, verified on October 12, 2022, and filed by the Petitioner (“Petition to Modify”). The Order purportedly incorporated terms from a Stipulation drafted by Petitioner on October 15, 2022 (the “Stipulation”). A review of the timeline reveals discrepancies, as the Order authorizing the Special Master’s appointment was signed on November 1, 2023, yet three prior orders, reliant on this Order, were issued earlier.
This motion will be decided by the court commissioner at an upcoming hearing. Failure to appear may result in a decision against you without your input. You may file a written response at least 14 days before the hearing. Respondent was unaware of the Stipulation or Proposed Order until September 1, 2023, and did not consent to their terms or authorize her signature. For these reasons and those outlined below, Respondent respectfully requests that the referenced documents be set aside.
Why Should the Stipulation Be Set Aside?
Was There a Valid Agreement Between the Parties?
A valid contract requires a “meeting of the minds.” See Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246. For stipulations, mutual assent must be clear. See Brown v. Brown, 744 P.2d 333 (Utah Ct. App. 1987). Respondent did not see the Stipulation until September 1, 2023, when it was emailed for her approval, which she explicitly declined. Despite this, Petitioner submitted the Proposed Order to Judge Mitchell, representing it as consensual, either explicitly or implicitly. This misrepresentation constitutes fraud or misconduct under Utah R. Civ. P. 60(b)(3) and surprise under 60(b)(1).
On September 1, 2023, Petitioner’s counsel emailed the Proposed Order, requesting consent. Within 25 minutes, Respondent refused approval and submitted revisions the next day (see Exhibit “G” annexed hereto). She believed she had 21 days to object under Utah R. Civ. P. § 74(c), based on a Notice to Appear or Appoint Counsel filed on August 30, 2023. However, Petitioner’s counsel filed the Proposed Order on September 8, 2023, claiming rule compliance (see Exhibit “H” annexed hereto). This violated the intent of Rule 74(c), rendering the Order void for lack of due process under Rule 60(b)(4). See Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶ 18, 270 P.3d 456.
Did the Mediation Process Allow for Informed Consent?
The Stipulation included a provision delegating issues from the Petition to Modify to the Special Master, inserted during the final hours of a prolonged mediation. Respondent was briefly absent to attend to her child, a fact known to Petitioner, and was distracted by childcare duties upon return. This timing suggests deceptive conduct, supporting a finding of fraud under Rule 60(b)(3). The mediation, expected to last 1-2 hours, extended to six hours, exhausting Respondent and impairing her ability to consent meaningfully.
Was Full Disclosure Provided During Mediation?
Did Petitioner Act in Good Faith?
The mediation process lacked transparency, denying Respondent meaningful participation. She was not shown the Stipulation until September 1, 2023, despite its basis in alleged agreements from October 2022. Petitioner’s presentation of the Proposed Order as consensual, despite Respondent’s objections, constitutes misrepresentation, warranting relief under Utah R. Civ. P. 60(b)(1) for surprise and 60(b)(3) for fraud. See Kartchner v. Kartchner, 334 P.3d 1, 2014 UT App. 195 (Utah Ct. App. 2014).
Were Respondent’s Objections Properly Addressed?
Respondent’s objections were disregarded, and the Order was entered without proper notice, raising due process concerns under Rule 60(b)(4). The rushed submission, despite Respondent’s clear refusal, underscores the lack of transparency. Petitioner’s counsel’s claim of compliance with procedural rules does not negate the violation of fairness principles, as Respondent was not given adequate opportunity to review or contest the Stipulation’s terms.
Did Petitioner Engage in Misrepresentation?
How Was Consent Misrepresented?
Misrepresentation undermines judicial integrity by misleading the court through false statements or omissions. Petitioner falsely implied Respondent’s consent to the Proposed Order, despite her explicit refusal on September 1, 2023. The Stipulation was not shared until that date, and her lack of approval was concealed when the Order was presented to Judge Mitchell on November 1, 2023. This conduct meets the criteria for fraud under Utah R. Civ. P. 60(b)(3), as it prevented Respondent from fully defending her interests. See Kartchner v. Kartchner, 334 P.3d 1 (Utah Ct. App. 2014).
What Impact Did Misrepresentation Have?
The misrepresentation was compounded by Petitioner’s claim of prior agreement, creating a false impression of mutual consent. This violation of good faith justifies setting aside the Stipulation and Order. The court relied on the erroneous assumption of consent, undermining the integrity of the judicial process and necessitating corrective action.
Were Mediation Rules Violated?
Was Full Disclosure Upheld?
Mediation requires fairness, full disclosure, and good faith. Petitioner breached these principles by failing to provide Respondent with the Stipulation until September 1, 2023. Despite Respondent’s prompt objection, Petitioner presented the Proposed Order as consensual, breaching good faith negotiation. This conduct constitutes fraud on the court under Utah R. Civ. P. 60(b)(3).
Was Respondent’s Participation Voluntary?
Respondent faced pressure to continue mediation despite expressing exhaustion and a desire to stop, misled by assurances of an imminent agreement. Her childcare responsibilities further impaired her participation, raising concerns about the voluntariness of any consent. The Court should:
i. Set aside the mediated agreement due to lack of informed consent.
ii. Review the mediation process to ensure compliance with fairness standards.
iii. Consider sanctions against Petitioner for misrepresentation and rule violations.
Was Respondent Provided Effective Counsel?
Did Counsel Meet Professional Standards?
The right to effective counsel is critical in civil matters. See Turner v. Rogers, 564 U.S. 431 (2011). Under Strickland v. Washington, 466 U.S. 668 (1984), Respondent must show deficient performance and prejudice. Her counsel, Rachel Evans, failed to meet professional standards. Evans did not share the Stipulation, filed on October 15, 2022, until September 1, 2023, depriving Respondent of review. Evans also misrepresented the Special Master’s authority, stating they could not modify the decree, influencing Respondent’s decisions.
How Did Counsel’s Failures Affect the Outcome?
From October 2022 to July 2023, Evans was unresponsive to Respondent’s inquiries, failing to inform her of critical filings, including the Proposed Order on October 20, 2022. These failures prejudiced Respondent’s ability to protect her interests, as she was unable to contest the Stipulation’s terms or understand the Special Master’s role. Had counsel performed competently, the mediation and Order outcomes might have differed, warranting relief.
Is the Stipulation Unconscionable?
Were Negotiation Conditions Fair?
An agreement is unconscionable if it lacks fairness in negotiation or understanding. See Sosa v. Paulos, 924 P.2d 357 (Utah 1996). Respondent was absent during key mediation moments, under duress from childcare duties, and pressured to continue despite objections. The Stipulation was drafted solely by Petitioner’s counsel and not shown to Respondent until September 2023, preventing informed consent. These factors, combined with deceptive tactics, render the Stipulation unenforceable. See Bekins Bar V Ranch v. Huth, 664 P.2d 455 (Utah 1983).
Does the Stipulation Exceed Authorized Powers?
The Stipulation’s broad language allows the Special Master to exceed their authority, conflicting with the Special Master Agreement’s limitation that they cannot modify court orders. See Utah R. Civ. P. § 53. This overreach, combined with the lack of fair negotiation, justifies setting aside the Stipulation and Order.
Should Subsequent Orders Be Vacated?
Are Subsequent Orders Tainted by the Stipulation?
Under Utah R. Civ. P. 60(b)(5), relief is warranted if a judgment is no longer equitable or based on a vacated prior judgment. Since the Order and Stipulation authorize the Special Master’s appointment, all subsequent orders issued by the Special Master must be vacated, as their validity depends on the flawed Stipulation.
Is the Motion Timely Filed?
Does the Motion Meet Procedural Deadlines?
This motion is timely, filed within 90 days of the Order’s entry on November 1, 2023, as required by Utah R. Civ. P. 60(b). It was filed and served on October 10, 2023, before the deadline of January 30, 2024, ensuring compliance with procedural requirements.
Conclusion
For the reasons stated, pursuant to Utah R. Civ. P. § 60(b) and equitable principles, Respondent respectfully requests that the Court set aside the order appointing the Special Master and all related orders issued by the Special Master. The lack of consent, misrepresentation, mediation violations, ineffective counsel, and unconscionable terms undermine the Stipulation’s validity, necessitating judicial intervention to restore fairness.
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