Armstrong v. Armstrong

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Robin Armstrong (Browning),
Plaintiff and Appellee,

v.

Richard Armstrong,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990725-CA

F I L E D
February 3, 2000
  2000 UT App 016 -----

Fourth District, Provo Department
The Honorable Gary D. Stott

Attorneys:
Grant W.P. Morrison, Salt Lake City, for Appellant
Rosemond G. Blakelock, Provo, for Appellee

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

This case is before the court on appellee's motion for summary dismissal.

Based upon our review of the trial court record, we agree that the order entered on July 30, 1999 is not a final order appealable as a matter of right. The order that is the subject of this appeal was a temporary order requiring a custody evaluation and governing visitation and related issues pending the court's determination of the case. An appeal could be pursued only with permission of this court if a timely petition under Rule 5 of the Utah Rules of Appellate Procedure had been granted. Appellant did not file such a petition. Accordingly, the appeal must be dismissed for lack of jurisdiction.
 

Appellant does not address the merits of the motion to dismiss, and instead argues that the motion was not timely under Rule 10 of the Utah Rules of Appellate Procedure. This argument is without merit. It is well-established that "a lack of jurisdiction can be raised by the court or either party at any time." A.J. MacKay Co. v. Okland Const. Co., 817 P.2d 323, 325 (Utah 1991). "The initial inquiry of any court should be to determine whether the requested action is within its jurisdiction." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). If the court concludes that it lacks jurisdiction, it "retains only the jurisdiction to dismiss the action." Id.

Having concluded that the appeal was not taken from a final order, we dismiss the appeal. Our dismissal is without prejudice to a timely appeal filed after the entry of a final judgment.

Appellee's motion for an award of attorney's fees is denied because the costs that may be awarded under Rule 34 of the Utah Rules of Appellate Procedure do not include attorney fees, and appellee has demonstrated no other basis on which to award attorney fees.
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Norman H. Jackson, Judge