Javed v. Bibi

IN THE UTAH COURT OF APPEALS

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Amoon Javed,

Petitioner and Appellee,

v.

Khurshid Bibi,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030923-CA
 

F I L E D
(June 4, 2004)
 

2004 UT App 187

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Wesley F. Sine, Salt Lake City, for Appellant

Clark R. Ward, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Orme.

PER CURIAM:

This case is before the court on its own motion for summary disposition based on lack of jurisdiction. A default divorce decree was entered on February 19, 2003, based on a signed "Entry of Appearance Waiver and Consent" executed by Appellant Bibi and filed in the trial court. Approximately sixteen months after entry of the default decree, Bibi filed a motion to set aside the decree pursuant to rule 60(b) of the Utah Rules of Civil Procedure. The Domestic Commissioner recommended, and the trial court ordered, that the rule 60(b) motion be denied as untimely.

Bibi did not timely appeal either from the default divorce decree or the denial of the rule 60(b) motion. Instead she filed an objection to the order denying the rule 60(b) motion on July 17, 2003. This objection was to the form of the order. Another objection was filed on August 6, 2003, which generally objected to the findings in the order. The trial court denied the objections in a signed minute entry issued on October 14, 2003. The basis of the denial was that the objection as to the substance of the order was untimely and the objection as to the form of the order was denied because the order accurately reflected the conclusions of the Commissioner.

Bibi filed a notice of appeal on November 12, 2003, which notice was timely only from the ruling denying the Bibi's objections. As a result, the only issue presented in Bibi's docketing statement that is properly before this court is whether or not the trial court erred in denying her objections to the order denying the rule 60(b) motion. This court lacks jurisdiction over all other claims and, as a result, we must dismiss the appeal insofar as it concerns those claims. See Utah R. App. P. 4(b); Serrato v. Utah Transit Auth., 2000 UT App 299,¶17, 13 P.3d 616; Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).

With respect to the issue of whether the objections to the order denying the rule 60(b) motion were properly denied, Bibi argues that the objections were timely. However, the substantive objection, filed on August 6, 2003, was clearly not timely filed. Moreover, the trial court determined that the objection to the form of the order, which was arguably timely filed on July 17, 2003, was improper because the order accurately reflected the conclusions of the Commissioner. Bibi has not argued that this ruling was in error. Rather, she argues that the denial of the rule 60(b) motion was in error. As a result, to the extent it is raised at all, the issue of whether the denial of Bibi's objections to the order denying the rule 60(b) was erroneous is so insubstantial as to not merit further review by this court. See Utah R. App. P. 10(a)(2)(A).

While the notice issued by this court indicated that the case was primarily being considered for summary disposition on the basis of lack of jurisdiction, both responses to this court's notice focused primarily on the merit of the issues presented. As a result, the parties are not prejudiced by this court considering the substantive nature of the narrow issue over which this court has jurisdiction.

The appeal is dismissed insofar as it seeks review of issues ruled upon more than thirty days prior to filing of the notice of appeal. The appeal is otherwise summarily affirmed.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge