Nigohosian v Nigohosian

Nigohosian v Nigohosian

IN THE UTAH COURT OF APPEALS

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Margaret Nigohosian,

Plaintiff and Appellee,

v.

Robert Nigohosian,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020606-CA
 

F I L E D
(April 15, 2004)
 

2004 UT App 116

 

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Douglas G. Mortensen, Salt Lake City, for Appellant

Jay L. Kessler, Magna, for Appellee

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Before Judges Bench, Greenwood, and Orme.

PER CURIAM:

Husband appeals the decree of divorce and supporting findings of fact and conclusions of law signed and filed by the court. He asserts on appeal that the documents are not in conformity with the agreements stated on the record at a pretrial hearing before the court.

In February 2002, the trial court held a pretrial hearing in this divorce case. At the hearing, the parties reached agreement on many key issues and stated the agreements on the record. Wife's counsel was assigned to prepare documents reflecting the result of the hearing.

Wife's counsel served a divorce decree and supporting findings of fact and conclusions of law on Husband's counsel, accompanied by a signed certificate of service. Receiving no timely objections to the documents, the trial court signed the documents. The documents were filed with the clerk on June 19, 2002.

Husband timely filed a notice of appeal. He also filed a motion to set aside the judgment, or to correct clerical error, pursuant to Utah Rule of Civil Procedure 60(a) and (b).(1) In both his rule 60 motion and appeal, Husband asserts that the documents entered by the trial court do not conform to what transpired on the record in the February hearing.

Rule 4-504 of the Code of Judicial Administration provides that counsel for a party obtaining a ruling shall draft and file with the court a "proposed order, judgment, or decree in conformity with the ruling." Utah Code Jud. Admin. R4-504(1). Copies of the proposed documents must be served on the opposing party. See id. R4-504(2). The opposing party must notify the court and counsel of any objections to the documents within five days of service. See id. This presents opposing counsel with the opportunity to review proposed documents and assure that they are "in conformity" with what transpired in court. Id. R4-504(1).

Husband waived his opportunity to challenge on appeal whether the decree, findings of fact, and conclusions of law were in conformity with the agreements reached on the record in the February hearing because he failed to object timely to the form of the documents under rule 4-504. See Evans v. State, 963 P.2d 177, 180 (Utah 1998). To preserve for appeal the issue of whether the written order of the court is in conformity with what transpired on the record, a party must first object to the form of the documents pursuant to rule 4-504. See id. (holding State waived issue of inconsistent language in court's written order because of failure to timely object to the language under rule 4-504).

Husband argues that he did not waive the issue of the conformity of the documents to the record. He asserts that his trial attorney explained why there were no timely objections filed at a motion hearing on October 25, 2002. However, that hearing is part of the subsequent rule 60 proceeding and is not before this court.

Husband also argues that there was no waiver because the documents did not have an "approved as to form" line signifying review and approval. However, implying the necessity of an approval line is contrary to the rule. The rule squarely places the burden to object, not to approve, on counsel, with a prescribed time in which to do so. See Utah Code Jud. Admin. R4-504(2).(2)

Furthermore, as a factual matter, Husband has not affirmatively shown that the decree and findings of fact and conclusions of law were inconsistent with what transpired at the hearing in February 2002. See Evans, 963 P.2d at 180 (stating appellate courts will presume language in trial court's order is correct unless affirmatively shown otherwise). Husband offers conclusory and self-serving statements that the parties' intent was different than what is reflected, supported only by his own proposed amended documents. Additionally, one of his challenges to the documents, the waiver of past-due amounts and attorney fees, appears clearly set forth in finding of fact number 24 and conclusion of law number 19.

Accordingly, we affirm.

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. A trial court has jurisdiction to consider a motion under Utah Rule of Civil Procedure 60(b) while an appeal is pending. See Baker v. Western Sur. Co., 757 P.2d 878, 880 (Utah Ct. App. 1988). Husband's rule 60 motion was a proceeding separate from the proceedings leading to the divorce decree appealed in this case. This court's "power of review is strictly limited to the record presented on appeal." Gorostieta v. Parkinson, 2000 UT 99,¶16, 17 P.3d 1110. Although some confusion exists among the parties, the record of the proceedings in the parallel rule 60 motion is not before this court on the appeal of the divorce decree, and is not considered for the purposes of this appeal.

2. Husband also asserts that no objection to the documents was necessary to preserve appeal under Dugan v. Jones, 724 P.2d 955 (Utah 1986). Both Dugan and rule 52(b) of the Utah Rules of Civil Procedure state that no trial objection is necessary to preserve for appeal a question of sufficiency of the evidence supporting a finding. See Dugan, 724 P.2d at 956. Here, however, the challenge is to the conformity of the documents with the stipulations entered on the record, not sufficiency of the evidence. Dugan is thus inapplicable.