Facio v. Facio

----ooOoo----

Beverly Ann Burge fka Facio,
Petitioner and Appellee,

v.

Gary Thomas Facio,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010442-CA

F I L E D
May 31, 2002 2002 UT App 182 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
David Larson, Salt Lake City, for Appellant
Connie L. Mower, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Davis.

BENCH, Judge:

Petitioner Wife argues that this court lacks jurisdiction to consider the appeal. We agree.

On April 19, 2001, the trial court entered its Amended Findings of Fact and Conclusions of Law and Amended Decree of Divorce. On April 24, 2001, Respondent Husband filed a timely objection to the amended findings pursuant to rule 52(b) of the Utah Rules of Civil Procedure. Husband objected to (1) the time it took to prepare the findings; (2) the fact that the findings were submitted before Husband's attorney had an opportunity to review them; and (3) the contents of the findings, which Husband claimed did not accurately represent the evidence at trial. Husband also requested a hearing on his motion.

Before the trial court acted on his rule 52(b) motion, Husband filed a notice of appeal. Our review of the record indicates that a hearing on Husband's rule 52(b) motion was never held, and the trial court has never ruled on it. Rule 4(b) of the Utah Rules of Appellate Procedure provides, in part: If a timely motion under the Utah Rules of Civil Procedure is filed in the trial court by any party . . . under Rule 52(b) to amend or make additional findings of fact, . . . the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. . . . A notice of appeal filed before the disposition of any of the above motions shall have no effect. Id. Husband's rule 52(b) motion is still pending in the trial court; thus, his notice of appeal was prematurely filed. See Swenson Assoc. Architects v. State, 889 P.2d 415, 417 (Utah 1994) ("When a party files a post-judgment motion pursuant to either rule 52(b) or rule 59, a notice of appeal must be filed after the order disposing of the motion is entered in order to vest jurisdiction in this court.").

We conclude that we lack jurisdiction to consider the appeal because, in light of the outstanding rule 52(b) motion, the judgment is not final. We therefore dismiss the appeal.
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
James Z. Davis, Judge