Opinion
Case No. 20000717-CA.
Filed January 25, 2001.
Appeal from the Fourth District, Provo Department, The Honorable Gary D. Stott.
Linda Quinton Burr, Provo, for Appellant.
Brent D. Young, Provo, for Appellee.
Before Judges Bench, Davis, and Thorne.
MEMORANDUM DECISION
On July 14, 2000, the trial court entered a decree of divorce, findings of fact, and conclusions of law. Within ten days, as required by Utah Rule of Civil Procedure 59(e), Mr. Cox filed a motion to alter or amend. Within thirty days of the decree, but before his Rule 59(e) motion had been ruled upon, Mr. Cox filed a notice of appeal. On October 27, 2000, the trial court entered an order denying Mr. Cox's Rule 59(e) motion. He did not file a new notice of appeal from the October 27th order.
A timely motion for new trial, such as the one filed by Mr. Cox, suspends the time for filing a notice of appeal. See Utah R. App. P. 4(b) (stating "the time for appeal for all parties shall run from the entry of the order denying a [timely Rule 59 motion, not from entry of decree]"). Mr. Cox's August 14th notice of appeal, filed before disposition of his motion, had "no effect." Id. To preserve his right of appeal, Mr. Cox was required to file a new notice of appeal within thirty days of October 27th. Id. He failed to do this.
Accordingly, we have no alternative but to dismiss the appeal for lack of jurisdiction.
Appellant's new counsel references the serious health problems experienced by appellant's former counsel as a possible explanation as to why the appeal was not perfected. Although we are sensitive to these health concerns, we do not have authority to extend the appeal period.See Utah R. App. P. 2. Such matters are the sole prerogative of the trial court. The time for requesting the trial court for an extension of time in which to appeal has expired. See Utah R. App. P. 4(e). Appellant might consider petitioning the trial court to reenter the order sought to be appealed. Cf. State v. Johnson, 635 P.2d 36, 38 (Utah 1981) (concluding where defendant is denied his right to a timely appeal, he may be resentenced nunc pro tunc to afford opportunity to perfect appeal).
Russell W. Bench, Judge, James Z. Davis, Judge, William A. Thorne, Jr., Judge.