Wong v. Wong

----ooOoo----

Wayne Wong,
Plaintiff and Appellant,

v.

Mae Wong,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010174-CA

F I L E D
August 16, 2001 2001 UT App 244 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Jamis M. Johnson, Salt Lake City, for Appellant
Suzanne Marelius, Salt Lake City, for Appellee

-----

Before Judges Jackson, Davis, and Thorne.

PER CURIAM:

Appellant Wayne Wong appeals from an Order of Modification of the divorce decree. This case is before the court on a sua sponte motion for summary dismissal.

The Order of Modification was signed by the trial judge and entered by the clerk on January 19, 2001, as indicated by the "filed" stamp placed on the order. Appellant's counsel relied upon a stamp placed on the face of the judgment representing that it was entered in the registry of judgments on January 26, 2001 and upon a telephone call to the clerk's office. Appellant contends this court should either deem the notice of appeal to be timely or remand the case for entry of an order extending the time for appeal.

Contrary to appellant's assertion, "entry" is defined in the Utah Rules of Civil Procedure. Rule 58A(b) requires that "all judgments shall be signed by the judge and filed with the clerk." Utah R. Civ. P. 58A(b). Rule 58A(c), which is captioned "[w]hen judgment entered," states that "[a] judgment is complete and shall be deemed entered for all purposes, except the creation of a lien on real property, when the same is signed and filed as herein above provided." Utah R. Civ. P. 58A(c). Although Rule 58A(c) also requires the clerk to "immediately make a notation of the judgment in the register of actions," this is not a prerequisite to entry for purposes of calculating the appeal time.

Rule 4(a) of the Utah Rules of Appellate Procedure requires a notice of appeal to be filed "within thirty days after the date of entry of the judgment or order appealed from." The notice of appeal was admittedly not filed within that time. "Failure to file a timely notice of appeal deprives this court of jurisdiction." Reisbeck v. HCA Health Servs., 2000 UT 48,¶1, 2 P.3d 447. We do not remand the appeal for consideration of whether an order extending the time for appeal should be entered because no motion to extend was filed within the time allowed by Rule 4(e) of the Utah Rules of Appellate Procedure, and this court is precluded from suspending that provision. See Utah R. App. P. 2.

We dismiss the appeal for lack of jurisdiction.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne, Jr., Judge