author: BOUDREAU, Justice:

text:
    2002 OK 73
    Carter R. HARGRAVE, Plaintiff/Appellant, v. TULSA BOARD OF ADJUSTMENT, Defendant/Appellee.
    No. 97,474.
    Supreme Court of Oklahoma.
    Sept. 24, 2002.

      Jon R. Patton, Tulsa, OK, for Plaintiff/Appellant.
    Martha Rupp Carter, Tulsa City Attorney, and Patrick T. Boulden, Sr. Assistant, Tulsa City Attorney, Tulsa, OK, for Defendant/Ap-pellee.
   BOUDREAU, Justice:

T1 We retained this appeal to decide whether the statutory requirements for perfecting an appeal from a decision of a municipal board of adjustment to the district court, set forth in 11 0.8.2001 § 44-110, are mandatory. We hold the statutory requirements are mandatory.

I.

FACTS

12 On June 26, 2001, the Tulsa Board of Adjustment (Board) conducted a hearing on Carter R. Hargrave's (Hargrave) request for a special zoning exception. At the conclusion of the hearing the Board denied Hargrave's request. On July 6, 2001, within ten days of the Board's denial, Hargrave filed a Notice of Appeal (NOA) in the district court of Tulsa County, Oklahoma. On that day he also mailed, by certified mail, return receipt requested, a copy of his NOA to the Board and to the Tulsa City Clerk. The Board received its copy of Hargrave's NOA on July 12, 2001. The Tulsa City Clerk did not receive a copy of Hargrave's NOA in the mail since Har-grave had inadvertently mailed it to the wrong address. Nevertheless, since the same attorney represents the Board and the Tulsa City Clerk, the Tulsa City Clerk became aware of Hargrave's NOA and transmitted the record of the Board's proceedings to the clerk of the district court of Tulsa County on August 6, 2001. On the Board's motion, the district court dismissed Har-grave's appeal for lack of subject matter jurisdiction since Hargrave had not timely filed his NOA with the Board and the Tulsa City Clerk.

IL

STANDARD OF REVIEW

18 The dispositive facts are undisputed. The issues presented are issues of law and are reviewed de novo. In conducting a de novo review we claim plenary, independent and non-deferential authority to examine a trial court's legal rulings. Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 456, n. 30.

IIL

APPEALS FROM A MUNICIPAL BOARD OF ADJUSTMENT ARE GOVERNED BY 11 0.98.2001 § 44-110.

14 Title 11, Section 44-110 of the Oklahoma Statutes governs appeals from a municipal board of adjustment. Subsection A identifies which court hears such an appeal. The appeal shall be taken to the district court in the county in which the municipality is located. Subsection B prescribes the requirements for perfecting the appeal. The appellant must file a notice of appeal, which must specify the grounds for appeal, with both the municipal clerk and the clerk of the board of adjustment within the time limit fixed by city ordinance. In Tulsa, the time limit fixed by ordinance is ten days from the date of the board's action.

T5 Subsection C addresses jurisdiction. It requires the board of adjustment, upon the filing of the notice of appeal, to transmit the record of its proceedings to the clerk of the district court. The district court obtains jurisdiction over the appeal when the record is filed with the clerk of the district court. Board of Adjustment of City of Tulsa v. Shore, 1952 OK 383, 249 P.2d 1011, 1013.

16 Subsection D requires the district court to conduct a trial de novo. The district court has the same power and authority as the board of adjustment to grant or deny a variance or special exception. Vinson v. Medley, 1987 OK 41, 737 P.2d 932, 938. "There must be a complete examination of all issues, both of fact and law. The cause stands as if it has never been resolved before." Id. The burden of proof at the district court rests on the same party upon whom it rested before the board of adjustment. Id.

IV.

THE STATUTORY REQUIREMENTS FOR PERFECTING AN APPEAL FROM A DECISION OF A MUNICIPAL BOARD OF ADJUSTMENT ARE MANDATORY.

17 We have never expressly addressed in the context of a decision of a municipal board of adjustment whether the statutory requirements for perfecting an appeal are mandatory. We have, however, addressed this issue in the context of a decision of the Board of Review of the Oklahoma Employment Seeu-rity Commission. See Oklahoma Employment Security Commission v. Carter, 1995 OK 74, 903 P.2d 868, 871; Oklahoma Employment Security Commission v. Emergency Physicians, Inc., 1981 OK 82, 631 P.2d 743; Edmondson v. Siegfried Ins. Agency, 1978 OK 45, 577 P.2d 72.

1 8 The statutory requirements for perfecting an appeal from a decision of the Board of Review of the Oklahoma Employment Seeu-rity Commission (OESC) are set forth in 40 ©.8.2001 § 2-610:

Within the ten (10) days after the day a notice of decision of the Board of Review is mailed ... the Commission, or any party to the proceedings before the Board of Review, may obtain judicial review thereof by filing in the district court ... a petition for review of such decision, against the Board of Review. In such petition for review all other parties to the proceeding before the Board of Review and the Commission shall be made co-defendants ....

In Carter, supra, the claimant, Lori Earls, timely filed her petition for review but named only her previous employer and the "Board of Review of the OESC." She did not separately name the OESC. The OESC specially appeared and objected to jurisdiction due to Earls' failure to name it as a defendant. Earls then sought, and the district court granted, leave to amend her petition to add the OESC as a defendant. We reversed, rejecting Earls' argument that the district court properly allowed her to amend her petition since. there was no showing OESC would be prejudiced. We held that strict compliance with $ 2-610 is mandatory, saying: "When the ten-day appeal period provided in [§ 2-610] has run without all necessary parties being named, the district court is without jurisdiction." Id. at 871.

We see no reason not to apply the same rule in the context of zoning appeals that we apply to unemployment compensation appeals. Accordingly, we hold that the statutory requirements for perfecting an appeal from a decision of a municipal board of adjustment are mandatory. We are not alone in so holding. Other courts have held in the context of zoning decisions that a statutorily prescribed method for perfecting an appeal is jurisdictional. See, eg., Cliff v. Bilett, 125 Colo. 138, 241 P.2d 437 (1952); Ballman v. Duffecy, 230 Ind. 220, 102 N.E.2d 646 (1952); see generally, 8A The Law of Municipal Corporations, McQuillin Mun. Corp. § 25.317 (3d ed).

V.

WE REJECT HARGRAVES ARGUMENTS CONCERNING SUBSTANTIAL COMPLIANCE, VENUE AND ESTOPPEL.

1 10 Hargrave argues that he substantially complied with the statutory filing requirements, that failing to file his NOA with the Board and the Tulsa City Clerk is a matter of filing in the wrong venue only, and that the Board should be estopped from challenging the manner in which he filed his NOA.

111 Hargrave first argues that his appeal should not have been dismissed since he substantially complied with the ten-day statutory time limitation by mailing his NOA on July 6, 2001, to the Board and to the Tulsa Municipal Clerk (although to the wrong address). We reject this argument. Hargrave has not cited, and our research has not revealed, any case in which we have applied the substantial compliance rule to a statutory time limitation for perfecting an appeal. See, eg., In re Transfers of Students, 1973 OK 1, 507 P.2d 543. Even if substantial compliance could save this appeal, Hargrave did not substantially comply with the statutory time limitation. Section 44-110(B), incorporating by reference Tulsa Revised Ordinance § 1609(A), requires that the NOA be filed, not merely mailed, within ten days of the Board's action. Hargrave undis-putedly did not file, or even attempt to file, his NOA with the Board and the Tulsa Municipal Clerk by July 6, 2001.

112 Hargrave argues the statutory filing requirements are "an issue of venue, not jurisdiction." Hargrave's appeal was not dismissed for improper venue. It was dismissed because Hargrave failed to comply with the statutory filing requirements set forth in Section 44-110(B) for perfecting his appeal.

{13 Hargrave also argues the Board should be estopped from asserting his failure to timely file his NOA because he followed the advice of the Board's attorney and followed the procedures in a pamphlet provided by the Board. We have examined the language in Hargrave's and his attorney's affidavits and in the Board's pamphlet titled "How to Apply to the Board." In essence, the language relied on by Hargrave merely indicates that the appeal is to the district court and is heard de novo. The language does not prescribe the statutory requirements for perfecting the appeal. Although we do not decide whether estoppel may ever be applied to toll the statutory time limitation for perfecting an appeal from a board of adjustment, the board's conduct in this case does not rise to the level of equitable estop-pel.

{14 Finally, one of the issues listed in Hargrave's Petition in Error is: "Does 11 O.S. § 44-110 give jurisdiction to both the district court and city?" A review of the record reveals Hargrave did not raise this issue before the trial court. He cannot raise it for the first time on appeal. (Great Plains Federal S & L Assoc. v. Dabney, 1993 OK 4, 846 P.2d 1088, 1089.

VIL.

CONCLUSION

{15 We hold the statutory requirements set out in 11 0.8.2001 § 44-110 for perfecting an appeal from a decision of a municipal board of adjustment are mandatory. Failure to file a proper notice of appeal with the board of adjustment and with the municipal clerk within the time limit fixed by ordinance is fatal. If a proper notice of appeal is timely filed with both the board of adjustment and the municipal clerk, the district court obtains jurisdiction over the appeal when the board of adjustment, pursuant to notice of appeal, transmits to the district court clerk the original or certified copies of all papers constituting the record in the proceedings before the board of adjustment.

APPEAL RETAINED; DISTRICT COURT JUDGMENT AFFIRMED.

WATT, V.C.J., HODGES, LAVENDER, OPALA, KAUGER and WINCHESTER, JJ., concur.

SUMMERS, J., concurs in result.

HARGRAVE, C.J., disqualified.

      . Section 44-110, enacted in 1977 and effective July 1, 1978, has not been amended to date. It provides, in full:
      § 44-110. Appeals from the board of adjustment
      A. An appeal from any action, decision, ruling, judgment or order of the board of adjustment may be taken by any person or persons, jointly or severally aggrieved, or any taxpayer or any officer, department, board or bureau of the municipality to the district court in the county in which the situs of the municipality is located.
      B. The appeal shall be taken by filing with the municipal clerk and with the clerk of the board of adjustment, within the time limits which may be fixed by ordinance, a notice of appeal. The notice shall specify the grounds for the appeal. No bond or deposit for costs shall be required for such appeal.
      C. Upon filing the notice of appeal, the board of adjustment shall forthwith transmit to the court clerk the original, or certified copies, of all papers constituting the record in the case, together with the order, decision or ruling of the board.
      D. The appeal shall be heard and tried de novo in the district court. All issues in any proceedings under this section shall have preference over all other civil actions and proceedings.
      E. An appeal to the district court from the board of adjustment stays all proceedings in furtherance of the action appealed from, unless the chairman of the board, from which the appeal is taken, certifies to the court clerk, after the notice of appeal has been filed, that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the district court upon application or notice to the administrative officer in charge of the enforcement of the terms and provisions of the ordinance, and upon notice to the chairman of the board from which the appeal is taken, and upon due cause being shown.
      F. The district court may reverse or affirm, wholly or partly, or modify the decision brought up for review. Costs shall not be allowed against the board of adjustment unless it shall appear to the district court that the board acted with gross negligence or in bad faith or with malice in making the decision appealed from. An appeal shall lie from the action of the district court as in all other civil actions.

      . 42 Tulsa Revised Ordinances, § 1609(A) ("An appeal from any action, decision, ruling, judgment or order of the board of adjustment may be taken ... by filing with the city clerk and the clerk of the board within ten (10) days from the date of [the board's] action, a notice of appeal, which notice shall specify the grounds of such appeal ...").

      . We also noted that the Legislature had recently provided that the ten-day period in 40 O.S. § 2-610 cannot be waived. Oklahoma Employment Security Commission v. Carter, 1995 OK 74, 903 P.2d 868, 871 (quoting 40 O.S. § 2-614 which provides that the ten-day time period in § 2-610 "may be waived for good cause shown; provided, this waiver shall not apply to appeals to district court of decisions of the Board of Review.").

      . Substantial compliance with a statute is not shown unless it is made to appear thai the purpose of the statute has been served. Kasner v. Stanmire, 1944 OK 230, 195 Okla. 80, 155 P.2d 230.


source: Caselaw Access Project

author: HANSEN, V.C.J.;

license: Public Domain

text:
    2000 OK CIV APP 94
    In the Matter of A.N.K., a minor child. Elmer Kidwell, Appellant, v. Steven Dale Verser and Karen Wendy Verser, Appellees
    No. 93799.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 12, 2000.
    Rehearing Denied June 9, 2000.

      Albert J. Hoch, Ir., Jeffrey S. Coe, Oklahoma City, Oklahoma, for Appellant,
    April Chasteen, David K. Rateliff, Chicka-sha, Oklahoma, for Appellees,
    Sam C. (Van) Bingaman, III, Chickasha, Oklahoma, for minor child.
   OPINION

HANSEN, V.C.J.;

11 Appellees, Steven Dale Verser and Karen Wendy Verser, filed an Amended Petition for Adoption Without Consent and Termination of Parental Rights, seeking to adopt the minor child, A.N.K. without the consent of the biological mother and the biological father, Appellant, Elmer Kidwell. In the Amended Petition, Appellees alleged, pursuant to 10 0.S8.1991 § 7505-4.2G, that Appellant, Elmer Kidwell, had wilfully failed, refused or neglected to contribute to the support of the minor child and that he had wilfully abandoned the minor child.

2 The trial court denied Appellant's motion for a jury trial. Appellant then filed an Application to Assume Original Jurisdiction and Petition for Writ of Mandamus. The Supreme Court denied Appellant's application. In a non-jury trial, the trial court granted Appellee's Petition for Adoption Without Consent and terminated Appellant's parental rights. Appellant appeals.

3 Appellant argues the trial court erred in terminating his rights without granting his motion for a jury trial. He generally contends 10 0.89.1998 Supp. § 7505-4.1G. is unconstitutional. That section provides: "A proceeding pursuant to this section for determination of necessity of parental consent or for termination of parental rights shall be heard by the court without a jury."

14 Analysis of this contention necessitates a perusal of several statutes. Originally, a statute generally dealing with State-based termination of parental rights, 10 O.S.1991 $ 1130, added subsection D which provided that "A parent or guardian of a child may petition the court to terminate the parental rights of a parent or the parents of a child for any of the grounds listed in paragraphs 1, 2, or 5 of subsection A of this section. A prior finding by a court that a child is delinquent, deprived or in need of supervision shall not be required for the filing of such petition by the parent or guardian." This subsection created an avenue for private termination of parental rights in non-State based proceedings. This statute was subsequently amended and renumbered under the Children's Code, 10 O.S.1997 Supp. § 7006-1.1 C., to provide: "The provisions of this section shall not apply to adoption proceedings and actions to terminate parental rights which do not involve a petition for deprived status of the child. Such proceedings and actions shall be governed by the Oklahoma Adoption Code."

11 5 The Adoption Code addresses the right to a trial by jury in two separate sections. Section 7505-2.1 deals strictly with termination of parental rights of a putative father where a mother has permanently relinquished a child born out of wedlock. Subsection H of this section provides for a non-jury trial. Section 7505-4.1A further provides for adoption without the consent of a biological parent and refers us to § 7505-4.2 to ascertain under what cireumstances a parent's consent is not required. Section 7505-4.2 does not provide for termination of parental rights, except as to a putative father. In fact, subsection C addresses the two in the disjunctive: either permission to adopt the child without the consent of a parent or termination of rights of a putative father.

I 6 In Merrell v. Merrell, 1985 OK 107, 712 P.2d 35, the Supreme Court held that adjudication in a proceeding declaring a child eligible for adoption without the father's consent did not sever the parent-child relationship between the parties and, hence, did not terminate the father's parental rights and responsibilities, particularly his support obligation to the child. Since the decision in Merrell, a parent's duty to support a child has become statutory and that duty remains in effect until a final decree of adoption has been entered (10 O.S.1999 Supp. § 7505-4.1(L)(2). Nevertheless, in Merrell, the Supreme Court clarified its holding in Wade v. Brown, 1973 OK 137, 516 P.2d 526, wherein the Court held an affected parent had the right to contest his right, or loss thereof, to consent to the adoption at the adoption hearing itself. Because the decree of adoption itself would terminate the parental rights, the hearing on eligibility coupled with the entry of the decree of adoption following the hearing would have the effect of terminating parental rights. However, the Merrell Court pointed out that Wade does not stand for the proposition that a declaration of eligibility itself effects a termination of parental rights. The Supreme Court further pointed out that 10 O.S.1984 Supp. § 60.16 (now 10 O.S.1999 Supp. § 7505-6.5(A) and (B)) provides it is the final decree which established the new parent/child relationships and terminates the old. "The adoption statutes contemplate the substitution of one set of providers for another, rather than the termination of one set of obligations and rights at one time and the implementation of a second set at a subsequent date."

T7 A close reading of all subsections of 7505-4.1 convinces us that subsection G, used by Appellee to support the trial court's ruling, does not allow a jury trial in either termination of parental rights of a putative father or in a determination that a child is eligible for adoption without a parent's consent. Neither of these sections addresses termination of a biological parent's rights in conjunction with a finding a child is eligible for adoption without a parent's consent.

T8 Because § 7505-4.1G does not deal with termination of parental rights of other than a putative father, we need not find it to be unconstitutional. Statutes should be construed whenever possible so as to uphold their constitutionality. Kimery v. Public Service Co. of Oklahoma, 1980 OK 187, 622 P.2d 1066. The trial court's combining its order finding the child to be eligible for adoption without consent of Appellant along with the termination of his parental rights is error.

19 Therefore, because § 1130 no longer provides for private termination of parental rights other than through the Adoption Code, we VACATE that portion of the order terminating Appellant's rights but AFFIRM that portion of the order finding the child to be eligible for adoption without Appellant's consent. This finding does not require a jury trial.

110 AFFIRMED IN PART, VACATED IN PART,

1111 ADAMS, J., and JOPLIN, J., concur.

      . In the present case, there is no claim Appellant is a "putative" father.


author: JOE C. TAYLOR, Judge.

text:
    2001 OK CIV APP 145
    DeEtta O. MARTIN, Plaintiff/Appellant, v. James S. BROCK, Defendant/Appellee.
    No. 92,573.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Decided Sept. 18, 2001.

      Kelly Trost-Walker, Norman, OK, for Plaintiff/Appellant.
    Steven M. Ditto, Oklahoma City, OK, for Defendant/Appellee.
   Rehearing Opinion by

JOE C. TAYLOR, Judge.

T1 Plaintiff, DeEtta O. Martin (Mother), appeals the trial court's judgment ordering Defendant, James S. Brock (Father), to pay child support only from the date of filing of Mother's petition to establish Father's paternity of the couple's child, and denying Mother attorney fees and costs. The primary issue on appeal is whether the trial court erred by failing to award child support for the five years previous to the paternity petition's filing, pursuant to 10 O.S. Supp.2000 § 88 (C)(1). In our original opinion, we found that such error had occurred, reversed the trial court's judgment on the merits, vacated its order denying attorney fees, and remanded for further proceedings. We granted rehearing to clarify that our holding as to Father's equitable defenses is limited to those defenses raised by Father in this appeal, and that on remand, the trial court should conduct further proceedings to determine the amount of child support due, including any credits which may be legally available to Father.

T2 The underlying facts are straightforward. Mother and Father have never been married to each other. Their child, M.C.B., was born in August 1980 and has been supported solely by Mother since birth. In June 1998, about two months before M.C.B.'s 18th birthday, Mother filed a petition against Father seeking an order of paternity, for current child support, and for child support in arrears. Though Father's initial answer stated he was without sufficient knowledge to admit or deny paternity, he later responded to discovery requests and admitted he is M.C.B.'s father.

13 The matter was tried in January 1999, after which the trial court entered an order adjudicating Father's paternity and requiring him to pay child support of $315 per month from the date of Mother's petition through May 1999, the last month of M.C.B.'s senior year in high school. The court specifically found Father owed Mother nothing for child support prior to the date of her petition. Mother thereafter requested attorney fees and costs, which the trial court denied.

T4 Mother appeals. Her primary allegation of error on appeal is that the trial court lacked any discretion under 10 O.S. Supp. 2000 $ 83 (C)(1), and 12 O.S. Supp.2000 § 95 (7), to deny child support for the five years previous to the filing of the paternity petition, and that the court erred as a matter of law in refusing to determine and enter judgment for such sums.

15 The trial court in its order did not explain its reasoning. In his brief on appeal, however, Father contends the reason for the decision was Father's testimony that Mother and he entered into an agreement when M.C.B. was a small child that Mother would not seek child support if Father would not seek visitation with M.C.B. Father also contends Mother is equitably estopped to request child support because of his reliance on her representations, and that Mother's request for support is barred by the doctrine of laches. We disagree with Father, and with the trial court, on all counts.

T 6 Oklahoma law is clear that "[aln action to establish paternity and to enforee support obligations can be brought any time before the child reaches the age of eighteen (18)." 12 0.8. Supp.2000 § 95 (7) (emphasis added). Title 10 0.8. Supp.2000 § 83 (C)(1) also is explicit in its requirements concerning imposition of liability for support:

An individual who has been legally determined to be the father of a child pursuant to Section 70 of this title, or an individual who has been judicially or administratively determined to be the father of a child shall be ordered to pay all or a portion of the costs of the birth and the reasonable expenses of providing for the child, provided that liability for support provided before the determination of paternity shall be imposed for five (5) years preceding the filing of the action.

(Emphasis added.)

%7 "When interpreting a statute, we presume the legislature intended what it expressed in the statute, and we will follow the plain language accordingly." Nichols Hills Physical Therapy v. Guthrie, 1995 OK CIV APP 97, 1 2, 900 P.2d 1024, 1025 (citing Humphrey v. Denney, 1988 OK 69, 757 P.2d 833). The most fundamental rule of statutory construction is to ascertain and give effect to the intention of the legislature as expressed in the statute, and "[iln the construction of statutes, 'shall is usually given its common meaning of 'must. It is interpreted as implying a command or mandate." Sneed v. Sneed, 1978 OK 138, ¶3, 585 P.2d 1363, 1364.

18 The language of $ 88(C)(I) is clear and unambiguous. It does not leave the trial court any discretion in deciding whether to impose lability for support for the five years preceding the filing of a paternity petition, but absolutely requires that such liability be imposed. The trial court's failure to follow the mandate of § 83(C)(1) was error. Its order refusing to impose support liability on Father for the five years prior to Mother's paternity petition therefore must be reversed.

19 Although Father contends he had an "agreement" with Mother that would absolve him of such liability, the Oklahoma Supreme Court has held, unequivocally, that such agreements are void and unenforceable because they are against public policy. See State ex rel. K.A.G. v. T.D.G., 1993 OK 126, 11 4-8, 12, 861 P.2d 990, 992-94. We reject Father's arguments that Mother is equitably estopped from seeking support because he relied on her purported waiver of the right to support, and that her request for support is barred by laches. In the first place, neither argument supports the trial court judgment as entered; rather, the arguments in essence attack the judgment and would bar Mother from any recovery whatsoever. Inasmuch as Father has not filed a counter petition-in-error on his own behalf, his contentions that estoppel and laches bar Mother's recovery are inapplicable.

110 Father's arguments also invite an improper interference by equity with clearly established legal rights. Where the rights of parties to an action are clearly defined and established by law, equity has no power to change or unsettle those rights. "No court is ever justified in invoking the maxim of equity for the purpose of destroying legal rights or of establishing rights that do not exist." York v. Trigg, 1922 OK 257, 209 P. 417, 425. Here, the rights of the parties are clearly established by law, and the "equitable defenses" which Father interposes are based on an agreement that has been deemed, by the Oklahoma Supreme Court, to be against public policy and void as a matter of law. A void agreement cannot give rise to rights, legal or equitable. Thus, to the extent the trial court's decision was based-as Father contends, and as the evidence at trial suggested-on such an "agreement" between the parties giving rise to equitable estoppel, waiver, or laches, the decision cannot stand.

11 We do not hold, as Father argues in his petition for rehearing, that "there is no set of cireumstances which could arise which would relieve a father of child support liability," that valid legal credits cannot be applied to reduce the amount of child support arrear-age due, or that "the equitable defenses of estoppel, waiver, [and] laches could never apply." We do hold, however, that Father may not escape liability for child support under § 83(C)(1) by making an illegal and unenforceable agreement with his child's mother never to seek visitation with the child. Father's equitable defenses based upon the void agreement must fail, We therefore reverse the trial court's judgment refusing to impose child support liability for the five years preceding Mother's filing of her petition to establish paternity, and remand with instructions to order child support for the five-year period, and for further proceedings to determine the amount of child support due.

12 Finally, Mother contends the trial court erred in denying her request for attorney fees. Because we reverse the trial court's judgment on the primary appeal, however, and remand for further proceedings as to the child support arrearage due, consideration of the trial court's order on this issue, and determination of entitlement to attorney fees and costs, at this stage is premature. We therefore vacate the trial court's order denying Mother's application for fees and costs, without prejudice to Mother again presenting an application for fees and costs to the trial court once the proceedings on remand are concluded.

T13 TRIAL COURT ORDER REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS. TRIAL COURT ORDER ON ATTORNEY FEES AND COSTS VACATED WITHOUT PREJUDICE.

14 STUBBLEFIELD, P.J., and RAPP, J., concur.

      . However, even if waiver, estoppel, or laches were available arguments to reduce Mother's recovery, the doctrines still would not apply here. Waiver is the intentional relinquishment of a known right by a person entitled to give such waiver. See Prudential Fire Ins. Co. v. Trave-Taylor Co., 1944 OK 272, T 8, 152 P.2d 273, 275. Mother was not the only person entitled to assert a right to support, as M.C.B. had an independent right to maintain a paternity action and request support. See State ex rel. K.A.G. v. T.D.G., 1993 OK 126, 18, 861 P.2d 990, 993 (citing 10 O.S. 1991 §§ 70 and 89). Thus, Father may not assert estoppel based on Mother's alleged waiver of a right that did not belong to her alone.


author: THORNE, Judge: DAVIS, Judge

text:
    2002 UT App 281
    Dan F. LEE, Plaintiff and Appellee, v. Dora SANDERS aka Dora Branin, and John Does 1-10, Defendants and Appellants.
    No. 20000945-CA.
    Court of Appeals of Utah.
    Sept. 6, 2002.

      Howard Chuntz, Orem, for Appellants.
    Ralph C. Amott, Hill, Johnson & Schmutz, Provo, for Appellee.
    Before Judges BENCH, DAVIS, and THORNE,
   OPINION

THORNE, Judge:

11 Dora Sanders appeals from the trial court's order determining her money interest in a partnership property. We reverse and remand.

BACKGROUND

T2' In 1994, Sanders and Dan Lee jointly purchased property in American Fork, Utah. The couple resided on the property and shared expenses through November 1996 when Sanders moved. From that time forward, Lee assumed all responsibility for the costs associated with the property, including the mortgage, insurance, taxes, and maintenance costs.

13 In October 1999, after attempting to refinance or sell the property and learning that Sanders was still a named title holder, Lee filed suit against Sanders in an attempt to quiet title Lee's complaint listed three causes of action: (1) equitable dissolution and division of partnership property and/or judgment for contribution and payments of plaintiff; (2) quiet title; and (8) accommodation. In addition to asking the court for an order quieting title in his name, Lee requested an order

dissolving the partnership of the parties [sic], ... and an accounting and determination of all partnership proceeds and contributions, and ... an order determining the relative equitable value of each parties contribution to the investment property, which [Lee] believes should be a finding of 100% interest in the property to [Lee] and 0% to [Sanders].

Sanders filed an answer, and, on June 6, 2000, after sufficient time had passed to permit the Parties an opportunity to conduct discovery, a trial was held.

14 Following the trial, the court issued a memorandum decision wherein the court found, inter alia, that the Parties had purchased and recorded the property as joint tenants. The court also determined that "based upon principles of equity and partnership, the Parties, though unmarried[,] should share equally in the amount of equity found by the court." The court then proceeded to determine that equity was best determined by examining the change in the amount owed on the mortgage over the time that the Parties jointly occupied the property. The trial court then determined that the amount owed on the property had decreased $1160.97 during the period in question, awarded Sanders one-half of that amount, and quieted title in Lee's name.

"I 5 Sanders subsequently filed a Motion to Amend the Judgment arguing that the trial court used an incorrect method to determine equity, and asserting that because neither party had asked the trial court to determine the equity vested in the property, and because neither party had presented any evidence of the value of the property, the court had erred in making its equity determination. The trial court denied the motion, concluding that while "neither party [had] presented evidence of the property's actual or appraised value at trial," both Parties "put at issue the value of the real property at issue in the lawsuit." Sanders now appeals.

ISSUE AND STANDARD OF REVIEW

16 Sanders argues that the trial court's decision to determine the amount of equity vested in the property was improper because the issue of equity was neither pleaded nor argued by the Parties. Whether an issue was properly before the trial court presents a question of law, which we review for correctness. See Keller v. Southwood N. Med. Pavilion, 959 P.2d 102, 105 (Utah 1998); Combe v. Warren's Family Drive-Inns, Inc., 680 P.2d 733, 735 (Utah 1984).

ANALYSIS

17 Sanders argues that because the property equity issue was neither pleaded nor tried by consent, the trial court erred in determining the equity amount. A trial court's findings should fit "within the framework of the petition as originally drawn, or as amended" and should be supported by the evidence presented. In re Behm's Estate, 117 Utah 151, 213 P.2d 657, 663 (1950). Under rule 15 of the Utah Rules of Civil Procedure, a trial court may infer an amendment to the pleadings if the issue is tried by the Parties' express or implied consent. See Utah R. Civ. P. 15(b). "Implied consent to try an issue may be found where one party raises an issue material to the other party's case or where evidence is introduced without objection, [and] where it appear[s] that the parties understood the evidence [was] to be aimed at the unpleaded issue." Colman v. Colman, 743 P.2d 782, 785 (Utah Ct.App.1987) (second and third alterations in original) (citations and quotations omitted). "A trial court may not base its decision on an issue that was tried inadvertently." Archuleta v. Hughes, 969 P.2d 409, 413 (Utah 1998) (citations and quotations omitted); see also Combe, 680 P.2d at 736 (holding that a "court may not grant judgment for relief which is neither requested by the pleadings nor within the theory on which the case was tried").

T 8 In the instant case, in its ruling denying Sanders's motion to amend the judgment, the trial court concluded that while "neither party [had] presented evidence of the property's actual or appraised value at trial," both Parties "put at issue the value of the real property at issue in the lawsuit." We disagree.

T9 In his complaint, Lee asked the trial court to determine, inter alia, "the relative equitable value of each parties [sic] contribution to the investment property." Lee also asked the court for "an accounting and determination of all partnership proceeds." However, the thrust of Lee's prayer for relief is found in his request for a determination that he possessed sole interest in the property, thus entitling him to an order quieting title in his name. We have thoroughly reviewed both the complaint and the answer and can nowhere find any language that would empower the trial court to determine the actual value of the property or to reduce the Parties' relative interests to a money amount. We therefore conclude that the trial court erred in determining that value had been put at issue in the pleadings.

[ 10 Moreover, while it is true that a trial court may infer an amendment to the pleadings when the Parties try an issue by express or implied consent, "[a] trial court may not base its decision on an issue that was tried inadvertently." Archuleta, 969 P.2d at 418 (citations and quotations omitted). Here, we have reviewed the trial record and, absent Sanders's unsuccessful attempt to introduce an appraisal of the property into evidence, there is nothing to suggest that the Parties ever presented the issue of Property value to the trial court. Accordingly, to the extent that the trial court may have relied either upon evidence submitted by the Parties, or trial testimony, to support its decision, the trial court erred in deciding the issue of the property's value.

T11 Finally, even assuming that the issue of the Parties' relative equity interests was properly before the court, we can see nothing in the record to support the trial court's adoption of any figure, let alone the figure actually adopted by the trial court. "The term 'equity' is described as the money value of a property or of an interest in property in excess of claims or liens against it.... It is the value in exeess of [the] mortgage or other liens." Land v. Land, 605 P.2d 1248, 1251 (Utah 1980) (footnotes omitted). Here, after hearing all of the testimony and examining all of the evidence, the trial court found

that per exhibit 23 the purchase price of the property was $51,296.75 as of September 14, 1994. The Court also finds that from exhibit 16, as of October 31, 1996, the time of separation of the Parties, $50,-135[.]78 was due and owing on the property. Subtracting that amount from the original price, the Court finds that the equity established in the property by the evidence is $1,160.97.
Considering the evidence, the court finds that based upon principles of equity and partnership, the Parties, though unmarried should divide equally the amount of equity found by the Court.

112 As previously discussed, neither party successfully introduced evidence of the property value through either an appraisal or an expert opinion. In fact, as evidenced by the trial court's decision, the only information concerning the "value" of the property focused on the price the Parties paid for the property in 1994 and the amount owing at the time the Parties separated. In a time of fluctuating property values, real estate equity cannot be determined simply through the examination of changes in mortgage principal over time, as the trial court has done here. Therefore, had the trial court been properly presented with the issue of relative equity interests, its equity determination was improper.

T13 Accordingly, we reverse the trial court's decision to determine the Parties' relative monetary interests in the property and remand for further proceedings consistent with this decision.

{14 I CONCUR: RUSSELL W. BENCH, Judge.

DAVIS, Judge

(dissenting):

{ 15 I believe the trial court did not err in determining the equity value of the property. Because the equity of the home was an issue from the beginning, the parties had adequate notice that it would be part of the litigation. See Berger v. Berger, 713 P.2d 695, 699 (Utah 1985) (holding that the trial court did not abuse its discretion where value was an issue at trial and the court's valuation was based upon evidence presented and a suggested valuation method). In fact, Sanders made an attempt to present documentary market valuation evidence, which the trial court, in response to Lee's objection, deemed inadmissible hearsay. Sanders also attempted to testify regarding an appraisal performed in 1997; however, in response to a similar objection, the testimony was not allowed. Thereafter, Sanders made no further attempts to produce or present any additional evidence. Clearly, the issue was before the court and Sanders cannot now argue that it was an abuse of discretion for the trial court to have reached the issue.

116 Further, it is not an abuse of discretion for a trial court to base its valuation of property solely on evidence presented by one party where the other party failed to provide contrary evidence. See Elman v. Elman, 2002 UT App 83, ¶32, 45 P.3d 176; see also Argyle v. Argyle, 688 P.2d 468, 470-71 (Utah 1984) (holding that the party objecting to the valuation method has the burden of offering further evidence). "Having failed to produce such evidence, [Sanders] may not claim that the trial court erred in considering the information [supplied]." Argyle 688 P.2d at 470.

117 I would therefore affirm the trial court and find that the issue of valuation was clearly before the trial court and that the trial court did not err in determining the equity value based upon the evidence presented.

      . The trial court's ruling seems to suggest that both Parties placed the value of the property at issue. However, Sanders filed only a responsive pleading, ie., an answer. Through this document, Sanders asked only that the trial court order the property sold and the resulting equity divided equally between the Parties. This request lends no support to the trial court's conclusion.

      . The evidence admitted included the original mortgage balance, the mortgage balance at the time of separation, and a 1999 County Property Tax Valuation that was not relevant because of the time period it represented.