Davis v. Davis

IN THE UTAH COURT OF APPEALS

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Kim Chalmer Davis,
Petitioner and Appellee,

v.

Lori Gayle Davis,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010792-CA

F I L E D
(December 6, 2001)

2001 UT App 378

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Fifth District, Beaver Department
The Honorable J. Philip Eves

Attorneys:
G. Michael Westfall, St. George, for Appellant
D. Miles Holman and Jeffrey N. Walker, Sandy, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

This is an appeal from a Final Order in Re: Support, Property Division, Debt Allocation, Attorney's Fees and Related Matters. This court issued a sua sponte motion for summary dismissal on the basis that this court lacks jurisdiction to hear the appeal because the notice of appeal was untimely.

The trial court's final order was entered July 26, 2001. Appellant concedes in her docketing statement that this order resolved all issues before the court and was a final order, but then argues in her memorandum in opposition to summary dismissal that the order was not final. The notice of appeal was not filed until September 12, 2001, after the thirty day time limit for filing a notice of appeal had passed. See Utah R. App. P. 4. Prior to filing a notice of appeal, Appellant filed a motion to set aside judgment pursuant to Rule 60(b) of the Utah Rules of Civil Procedure. The court has yet to rule on this motion. Appellant claims that this motion tolls the time for filing the notice of appeal. However, Rule 60(b) itself indicates that a motion filed under Rule 60(b) "does not affect the finality of a judgment or suspend its operation." A Rule 60(b) motion is not among the motions enumerated under Rule 4(b) of the Utah Rules of Appellate Procedure as tolling the appeal time. A rule 60(b) motion does not extend or toll the thirty day time period in which to file a notice of appeal unless the trial court rules, within the thirty days for appeal, to vacate the order. Sittner v. Schriever, 2000 UT 45,&20; 2 P.3d 442. Appellant did not file a motion to extend the time to for filing the notice of appeal. See Utah R. App. P. 4(e). Because the notice of appeal was not timely filed, this court lacks jurisdiction to hear the appeal. See Serrato v. Utah Transit Authority, 2000 UT App 299,&7; 13 P.3d 616. The appeal is dismissed.

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Pamela T. Greenwood, Presiding Judge

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Norman H. Jackson, Associate Presiding Judge

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James Z. Davis, Judge