Bagley v. Bagley

----ooOoo---- Lynda Kelleen Bagley,

Plaintiff and Appellant,

v.

Richard Ames Bagley,

Defendant and Appellee. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981264-CA

F I L E D
(January 14, 1999)

1999 UT App 006

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Third District, Salt Lake Department
The Honorable Tyrone E. Medley

Attorneys:
Lynda Kelleen Bagley, Salt Lake City, Appellant Pro Se
John B. Anderson, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Appellant Lynda Kelleen Bagley appeals from the decree of divorce and an order denying her motion to set aside the parties' stipulation. This appeal is before the court on a sua sponte motion for summary disposition. After review of the entire trial court record, we dismiss the appeal under Utah R. App. P. 4(b).

On March 30, 1998, the district court entered written findings of fact and conclusions of law and a decree of divorce, as well as written findings of fact and conclusions of law and an order denying the motion to set aside the stipulation. On April 6, 1998, Lynda, through counsel, filed a "Motion to Set Aside Findings of Fact, Conclusions Of Law and Decree of Divorce, and Findings, Conclusions and Order." The motion did not specifically invoke any rule of civil procedure; however, it sought modification of both the court's findings and judgment. Accordingly, the motion is properly construed as a timely motion under Utah R. Civ. P. 52(b) to amend the findings of fact and/or under Utah R. Civ. P. 59 to alter or amend the judgment. No order disposing of the post-judgment motion has been entered in the trial court.

Under Utah R. App. P. 4(b), a timely motion under Utah R. Civ. P. 52(b) or 59 suspends the time for filing a notice of appeal until disposition of the motion. Accordingly, "[a] notice of appeal filed before the disposition of any of the above motions shall have no effect," and "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion . . .." 1

Because no order disposing of the motion to set aside the trial court's findings and judgment has been entered, the notice of appeal filed on April 30, 1998 was premature and of no effect. The appeal is dismissed under Utah R. App. P. 4(b), without prejudice to filing of a timely appeal following disposition of the post-judgment motion.

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Michael J. Wilkins, Presiding Judge

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Russell W. Bench, Judge

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Gregory K. Orme, Judge
 

1. Appellant may have incorrectly assumed that when her trial counsel withdrew and she filed a pro se notice of appeal, she automatically abandoned her pending motion. However, this court is precluded by Utah R. App. P. 2 from suspending the operation of Utah R. App. P. 4(b). We also note that the claim made in the post-trial motion is asserted on appeal, although no ruling was obtained in the trial court.