Resendes v. Resendes

Resendes v. Resendes

IN THE UTAH COURT OF APPEALS
 

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Robert Resendes,

Plaintiff and Appellant,

v.

Tamara Joy Resendes,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040665-CA
 

F I L E D
(December 16, 2004)
 

2004 UT App 478

 

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Sixth District, Richfield Department

The Honorable Paul D. Lyman

Attorneys: Lorie D. Fowlke and Paul Waldron, Provo, for Appellant

Douglas L. Neeley, Manti, for Appellee

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Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    Appellant Robert Resendes appeals the alimony award in the Decree of Divorce, while a motion to amend the decree remains pending in the district court. This case is before the court on a sua sponte motion for summary dismissal under rule 4(b) of the Utah Rules of Appellate Procedure.

    The district court entered Findings of Fact and Conclusions of Law and a Decree of Divorce on July 8, 2004. On July 12, 2004, Mr. Resendes filed belated objections. On July 13, 2004, he filed a "Motion to Amend the Decree, or in the Alternative, Motion for Relief," which sought amendment of the findings of fact and conclusions of law and the divorce decree as requested in the objections. The motion incorrectly cited rule 15 of the Utah Rules of Civil Procedure, relating only to amendment of pleadings filed by the parties, as authority for the motion. Based upon its content, we construe the motion to amend as a timely motion to amend or make additional findings of fact under rule 52(b) of the Utah Rules of Civil Procedure or a timely motion to alter or amend the judgment under rule 59(e) of the Utah Rules of Civil Procedure. See Reeves v. Steinfeldt, 915 P.2d 1073, 1077 (Utah Ct. App. 1996) (stating that a motion that asked the court to "alter its findings and amend its conclusions and judgment" was in substance a rule 59 motion, which tolled the time for appeal).

    A timely motion to amend or make additional findings of fact under rule 52(b) or a timely motion to alter or amend the judgment suspends the time for filing a notice of appeal until entry of an order granting or denying the motion. See Utah R. App. P. 4(b). "A notice of appeal filed before the disposition of any [such] motion shall have no effect." Utah R. App. P. 4(b). "A new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion as provided above." Id. The notice of appeal was filed while the post-judgment motion remained pending and stated that Mr. Resendes sought to appeal the portion of the divorce decree setting the alimony amount, while simultaneously pursuing the timely motion seeking amendment of the decree on other subjects. This is not allowed under the appellate rules, and we lack jurisdiction over the appeal.

    Accordingly, we dismiss the appeal without prejudice to filing a timely appeal after entry of an order disposing of the timely post-judgment motion to amend the decree.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge