In the matter of the adoption of Baby Girl D, a minor, 1998Annotate this Case
(Not For Official Publication)
IN THE UTAH COURT OF APPEALS
In the matter of the adoption of Baby Girl D, a minor.
D.B. and S.B.,
Case No. 981339-CA
F I L E D
February 11, 1999
1999 UT APP 039
Second District, Provo Department
The Honorable Ray M. Harding, Jr.
James I. Watts, Salt Lake City, for Appellant
Phillip E. Lowry, Provo, for Appellees
Before Judges Bench, Billings, and Orme.
¶1 This matter is before the court on its
own motion to dismiss and upon the parties joint motion for dismissal.
¶2 If a timely motion to amend or make additional findings is filed with the trial court, the appeal period is tolled until the entry of an order denying such a motion and 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." Utah R. App. P. 4(b); see Swenson Associates Architects v. State, 889 P.2d 415, 417 (Utah 1994) (stating that when a party files a post-judgment motion pursuant to Utah R. Civ. P. 52(b) or 59, a notice of appeal must be filed after the order disposing of the motion is entered in order to vest jurisdiction in an appellate court). "A notice of appeal filed before the disposition of a [Rule 52(b) motion] shall have no effect." Utah R. App. P. 4(b); see Anderson v. Schwendiman, 764 P.2d 999, 1000 (Utah Ct. App. 1988) (a notice of appeal filed before the disposition of a proper post-judgment motion is premature, ineffective, and does not confer jurisdiction on an appellate court).
¶3 On May 4, 1998, the trial court entered findings of fact and conclusions of law determining that since appellant had not met the strict requirements of the North Carolina statute, he did not have the right to consent to the adoption under Utah Code Ann. § 78-30-4.14 nor the right to contest the adoption under Utah Code Ann. § 78-30-4.15. Appellant was dismissed as a party and the adoptive parents were allowed to proceed with their adoption.
¶4 Appellant then filed a motion to alter or amend. Utah R. Civ. P. 52(b) requires that such a motion be filed "not later than 10 days after entry of judgment." In the trial court's file, appellant's motion is date-stamped on May 19, 1998, which would be more than 10 days after May 4, 1998. However, the trial court determined that the motion was timely. (It appears that appellant's Rule 52(b) motion was faxed to the trial court on time (on May 14th) and that the original motion was filed with the district court a few days later and considered timely filed pursuant to the district court's fax policy.)
¶5 Because the trial court determined appellant's
Rule 52(b) motion to be timely, appellant's June 5, 1998, notice of appeal
was premature and of "no effect," and we are without jurisdiction to consider
the appeal.(1) Utah R. App. P. 4(b). Accordingly,
we have no alternative but to dismiss the appeal for lack of jurisdiction.
Russell W. Bench, Judge
Judith M. Billings, Judge
Gregory K. Orme, Judge
1. Had the trial court concluded that appellant's Rule 52(b) motion was untimely, his notice of appeal would have been untimely as well. Appellant would have had to file his notice of appeal by June 3, 1998, but did not file it until June 5, 1998.