Visser v. Visser

IN THE UTAH COURT OF APPEALS

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Steven Visser,
Plaintiff and Appellee,

v.

Judy S. Visser,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030430-CA
 

F I L E D
(August 14, 2003)
 

2003 UT App 285

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Seventh District, Castle Dale Department

The Honorable Bruce K. Halliday

Attorneys:
Judy S. Visser, Orem, Appellant Pro Se
Samuel P. Chiara, Price, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

This case is before the court on its own motion for consideration of summary dismissal because of an untimely notice of appeal. Both parties have responded to this court's motion. The trial court issued the divorce decree and findings in this matter on March 14, 2003. Appellant filed her notice of appeal on May 7, 2003, beyond thirty days after entry of the final judgment. See Utah R. App. P. 4(a). On April 3, 2003, Appellant filed a "Motion in Opposition to Findings and Conclusions of Law and Unlawful Signing of Decree of Divorce" in the trial court. Appellant asks this court to construe this motion as a motion for a new trial, to amend findings, and/or for relief from the judgment, pursuant to rules 52, 59, and 60 of the Utah Rules of Civil Procedure.

We conclude that Appellant's motion can be characterized, in content, as a motion requesting entry of a new judgment due to an irregularity in the proceedings. See Utah R. Civ. P. 59(a)(1). Therefore, the time for filing an appeal begins at the time the trial court rules on Appellant's motion. Because the trial court has not issued a ruling on her motion, the time for filing an appeal has not begun. Thus the notice of appeal is premature and, therefore, untimely. As a result, this court lacks jurisdiction of the appeal. "When a matter is outside the court's jurisdiction it retains only the authority to dismiss." Varian-EImac, Inc. V. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). This appeal is dismissed without prejudice to filing a proper, timely appeal upon the trial court's ruling on the pending motion.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge