Diamond v. Diamond

----ooOoo---- Linda Ann Diamond,

Plaintiff and Appellee,

v.

Allen Ray Diamond,

Defendant and Appellant. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981160-CA

F I L E D
(December 17, 1998)

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Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
Scott B. Mitchell, Salt Lake City, for Appellant
Lowell V. Summerhays, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Jackson.

PER CURIAM:

Appellant Allen Ray Diamond appeals from an order denying his objection to a commissioner's recommendation and entering a judgment for back alimony and debt reimbursement.

Allen simultaneously filed both a motion to set aside the divorce decree as "void" under former Utah R. Civ. P. 60(b)(5) and the objection to the commissioner's recommendation, which also alleged the decree was void as a result of fatally defective service of process. 1 Although the district court denied the objection and stated "the opinion that the former order granting alternative service was properly obtained," it has not yet ruled on the Rule 60(b) motion. The divorce decree was a final judgment of the court because the time for initiating an appeal had expired more than a year before the initiation of proceedings on the order to show cause. Rule 60(b) authorizes the trial court, on motion, to relieve a party from a final judgment or decree on the grounds enumerated in the rule, and was the proper procedure for challenging the divorce decree.

In Baker v. Western Surety Co., 757 P.2d 878 (Utah Ct. App. 1988), this court adopted the position that a trial court has jurisdiction to consider a Rule 60(b) motion while an appeal is pending. 757 P.2d at 880. The court held "that if the district court finds the motion to be without merit, it may enter an order denying the motion." Id. "If . . . the trial court is inclined to grant the motion, counsel should obtain a brief memorandum to that effect from the trial court, and request an order of remand from the appellate court so that the trial court can enter an order." Id. The Supreme Court adopted this rule in White v. State, 795 P.2d 648 (Utah 1990). If Allen is successful in his motion to set aside the judgment in this case, the issues regarding enforceability of the decree raised in this appeal would be moot. If the decree is determined to be valid, Allen has asserted no other basis on which to dispute the commissioner's recommendation to enforce the alimony and debt division provisions of the decree. In addition, a motion to set aside a judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b). See Garcia v. Garcia, 712 P.2d 288 (Utah 1986).

Under the circumstances of this case, and in the interest of judicial economy, the Rule 60(b) motion should be resolved. Accordingly, we temporarily remand the case to the district court for the limited purpose of determining the pending motion to set aside the judgment under Rule 60(b) and for any necessary proceedings to enable the court to make that determination. This court defers a ruling on the issues raised in this appeal and retains jurisdiction to rule on the appeal following disposition of the Rule 60(b) motion. However, if the motion is denied, Allen must file a separate notice of appeal from that final order in order to obtain appellate review.

This case is temporarily remanded to the district court for a determination on the motion to set aside the judgment under Utah R. Civ. P. 60(b). The district court should promptly advise this court of its decision to enable this appeal to proceed to a decision.

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Judith M. Billings, Judge

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. At the time of the motion's filing, the provision of Rule 60(b) referring to a void judgment was in sub-paragraph (5); the provision now appears as sub-paragraph (4).