Diamond v. Diamond

----ooOoo----

Linda Ann Diamond,
Plaintiff and Appellee,

v.

Allen Ray Diamond,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981160-CA

F I L E D
October 15, 1999
     1999 UT App 287 -----

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 Greenwood, Davis, and Orme.

PER CURIAM:

Appellant Allen Ray Diamond appeals from an order denying his objection to a commissioner's recommendation on an order to show cause seeking enforcement of a divorce decree and entering judgment against him.

Appellant simultaneously filed the objection to the commissioner's recommendation and a motion under Utah R. Civ. P. 60(b) to set aside the divorce decree as void. In December of 1998, this court issued a memorandum decision remanding the case to allow the trial court to consider appellant's pending motion under Utah R. Civ. P. 60(b). See Diamond v. Diamond, No. 980160-CA, slip op. (Utah Ct. App. December 17, 1998). This court stated that because the time for taking a direct appeal from the divorce decree had expired more than a year before the initiation of proceedings on the order to show cause, the proper procedure for challenging the decree was the Rule 60(b) motion. Accordingly, we remanded this case for determination of the motion and retained jurisdiction to resolve the appeal following the proceedings in the trial court. This court noted that due to the identity of the issues, if the Rule 60(b) motion was granted, this appeal would be moot. Similarly, because appellant had "asserted no other basis on which to dispute the commissioner's recommendation to enforce the alimony and debt division provisions of the decree," a denial of the motion would be dispositive of the issues on appeal. This court specifically advised that the appellant must file a separate notice of appeal from any order denying the Rule 60(b) motion in order to obtain appellate review of that ruling. Appellant did not file a notice of appeal. Accordingly, based upon the culmination of the proceedings on remand without initiation of any further appeal, the only grounds in support of this appeal have been resolved by denial of the Rule 60(b) motion.

The trial court's disposition of the issues regarding the validity of the divorce decree as raised in the Rule 60(b) motion is binding on the parties as a final judgment and is res judicata. Appellant has raised no other grounds in this appeal challenging the trial court's enforcement of the decree through the order to show cause proceedings or the entry of the judgment for accrued alimony and debt reimbursement.

Accordingly, we affirm the judgment.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Gregory K. Orme, Judge