State of Utah in the interest of P.V., S.M., G.V., R.V., D.V., and E.V.

Annotate this Case
K.V. v. State. Filed November 12, 1999 IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of
P.V., S.M., G.V., R.V., D.V., and E.V.,
persons under eighteen years of age.
______________________________

K.V.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990034-CA

F I L E D
November 12, 1999
  1999 UT App 334

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Second District Juvenile, Ogden Department
The Honorable L. Kent Bachman

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

K.V. appeals the order terminating her parental rights. The appeal raises two issues: (1) whether K.V. was improperly denied a jury trial and (2) whether the court erred in proceeding to determine the case although K.V. was not present on the last day of the trial.

The juvenile court entered the order terminating parental rights on July 14, 1998. K.V. did not appeal. Instead, thirty days after entry of the order, K.V. filed an untimely motion for new trial under Rule 59 of the Utah Rules of Civil Procedure. A timely motion for new trial must be served not later than ten days after the entry of judgment. See Utah R. Civ. P. 59(b). "An untimely motion for new trial has no effect on the running of the time for filing a notice of appeal." Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982); see also Utah R. App. P. 4(b) (providing that a "timely" motion under Rule 59 for a new trial suspends the time for filing an appeal until after entry of the order denying the motion). The time for filing a notice of appeal from the termination order expired without K.V. filing an appeal. Therefore, K.V. can no longer appeal from the termination order, and the jury trial issue, which was raised only prior to trial, is not properly before this court.

Following the denial of the motion for new trial, K.V. filed a motion for relief from judgment under Rule 60(b)(1) of the Utah Rules of Civil Procedure alleging the same factual grounds and claiming her failure to appear was the result of mistake, inadvertence, surprise, or excusable neglect. A motion under Rule 60(b) does not operate to extend the time for appealing the termination order, because Rule 60(b) is not among the rules enumerated in Rule 4(b) of the Utah Rules of Appellate Procedure. However, an order denying a Rule 60(b) motion is appealable. K.V. filed a timely notice of appeal after the denial of the motion. Therefore, the only issue properly before this court is whether the trial court erred in denying the motion.

We may affirm the trial court on any proper ground, even though not relied upon below. See Gardner v. Madsen, 949 P.2d 785, 789 n.2 (Utah Ct. App. 1997). A motion for relief from a judgment or order under Rule 60(b)(1) must be filed within three months of entry of the order or judgment. Utah R. Civ. P. 60(b). The time for filing the present motion commenced with entry of the termination order on July 14, 1998 and was not extended by the untimely motion for new trial. K.V. did not file the Rule 60(b)(1) motion until December 1998, over five months after entry of the termination order. Accordingly, the motion should have been denied as untimely.

A trial court's determination of a Rule 60(b) motion will be reversed only for an abuse of discretion. See Gillmor v. Wright, 840 P.2d 431, 434 (Utah 1993). Even if this court were to consider the merits of the motion, we conclude the trial court did not abuse its discretion by denying the motion. The trial court found that K.V. had knowledge of the continued trial date and willfully failed to appear; that she also failed to appear one week later when she had another opportunity to appear; and that she failed to maintain contact with her attorney. K.V. has not satisfied her burden to marshal the evidence supporting these findings and demonstrate that they are so lacking in support as to be against the clear weight of the evidence, and thus clearly erroneous. See id. at 433. The findings are not clearly erroneous, and the court did not abuse its discretion in denying the motion.

We affirm the judgment.
 
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
Norman H. Jackson, Judge