Jensen v. Jensen , 304 P.3d 878 ( 2013 )


Menu:
  •                           
    2013 UT App 143
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    HEATHER M. JENSEN,
    Petitioner and Appellee,
    v.
    JARED J. JENSEN,
    Respondent and Appellant.
    Per Curiam Decision
    No. 20130317‐CA
    Filed June 6, 2013
    Sixth District, Richfield Department
    The Honorable Wallace A. Lee
    No. 084600026
    Douglas L. Neeley, Attorney for Appellant
    Trent T. Seegmiller, Attorney for Appellee
    Before JUDGES DAVIS, THORNE, and VOROS.
    PER CURIAM:
    ¶1     Jared J. Jensen appeals from the trial court’s order granting
    Heather M. Jensen’s motion to modify child support, entered on
    February 25, 2013. This appeal is before the court on its own motion
    for summary disposition based on the lack of a substantial question
    for review. In his response to the motion, Mr. Jensen has failed to
    identify a substantial issue warranting further proceedings by this
    court.
    ¶2     Mr. Jensen asserts that the trial court erred in granting the
    motion to modify child support. However, he did not oppose the
    motion in the trial court. He filed no timely response in the trial
    court and the order was entered by default. To preserve an issue
    for appeal, the issue must first be raised in the trial court in such a
    way that the trial court has an opportunity to rule on the issue. 438
    Main St. v. Easy Heat, Inc., 
    2004 UT 72
    , ¶ 51, 
    99 P.3d 801
    . By failing
    to respond to the motion, Mr. Jensen failed to give the trial court
    Jensen v. Jensen
    the opportunity to rule on any issue regarding the motion to
    modify.1 Accordingly, there is no issue preserved for appeal
    regarding the order granting the motion to modify child support.
    1. An issue may have been preserved by Mr. Jensen’s motion to
    strike the motion to modify child support. An appeal of a final
    judgment may include challenges to interlocutory orders even if
    such orders are not specified in the notice of appeal. See U.P.C., Inc.
    v. R.O.A. Gen., 
    1999 UT App 303
    , ¶ 13, 
    990 P.2d 945
    . However, at
    some point the specific order and issue must be identified to permit
    an appellate court to review the issue. “Pinpointing where and how
    the trial court allegedly erred is the appellant’s burden.” GDE
    Constr. Inc. v. Leavitt, 
    2012 UT App 298
    , ¶ 24, 
    294 P.3d 567
    . Mr.
    Jensen did not specify the motion to strike as the subject of appeal
    in either his docketing statement or in his response to this court’s
    motion.
    Even if the issue raised in Mr. Jensen’s motion to strike was
    properly preserved, it is without merit. Mr. Jensen asserted that the
    court improperly permitted Mrs. Jensen to proceed by a motion to
    modify child support because there was no controlling child
    support order in place. This premise is incorrect. A child support
    order is a judgment, decree, or order which establishes or modifies
    child support. Utah Code Ann. § 78B‐12‐102(9) (LexisNexis 2012).
    The divorce decree established a child support amount of zero.
    That initial order established the baseline child support at that
    time. The “order clearly addressed child support and is therefore
    properly considered a child support order.” Doyle v. Doyle, 
    2009 UT App 306
    , ¶ 26, 
    221 P.3d 888
    , aff’d, 
    2011 UT 42
    , 
    258 P.3d 553
    .
    With a child support order in place that had not been
    modified within the last three years, Mrs. Jensen could proceed to
    seek a modification by motion rather than by a petition. See Utah
    Code Ann. § 78B‐12‐210(8) (LexisNexis 2012). The motion has a
    different required showing than the petition. See id. § 78B‐12‐210(8),
    (9). However, it is noteworthy that both the motion to modify and
    the petition to modify are premised on a prior child support order
    being in place. See id. Thus, Mr. Jensen’s argument that the petition
    should have been required because there was no prior order is
    based on a logical fallacy.
    20130317‐CA                       2                 
    2013 UT App 143
    Jensen v. Jensen
    ¶3      Mr. Jensen also asserts that the trial court abused its
    discretion when it declined to consider his untimely response to the
    motion, which was filed eleven days after the order was entered.
    This issue is not properly before this court for two reasons. First,
    Mr. Jensen appealed the order granting the motion to modify child
    support entered on February 25, 2013. That is the only order
    identified in the notice of appeal. A notice of appeal must designate
    the order or judgment appealed. “This requirement is jurisdictional
    because the object of a notice of appeal is to advise the opposite
    party that an appeal has been taken from a specific judgment in a
    particular case.” In re B.B., 
    2002 UT App 82
    , ¶ 9, 
    45 P.3d 527
    . The
    trial court’s memorandum decision and order denying Mr. Jensen’s
    postjudgment objection and his untimely notice to submit was
    entered on March 25, 2013, after the entry of the final appealable
    order, and is not identified as an order on appeal in the notice of
    appeal. Accordingly, the order is not within the scope of this
    appeal.
    ¶4     Second, although Mr. Jensen asserts that the trial court
    should have sua sponte ordered a new trial pursuant to rule 59 of
    the Utah Rules of Civil Procedure after considering his response,
    such an action was barred under the time constraints of rule 59. A
    court may exercise its discretion under rule 59(d) only within ten
    days after the entry of the final judgment. Utah R. Civ. P. 59(d). Mr.
    Jensen did not file his response until March 8, and did not file his
    notice to submit until March 18. The time for the trial court to
    entertain a rule 59 motion had passed. Accordingly, the trial court
    had no discretion to consider ordering a new trial under rule 59. See
    
    id. ¶5
         Mr. Jensen’s response to this court’s motion did not identify
    a substantial issue for review but rather argued that this court
    should consider the pending motion to set aside as a motion for
    new trial under rule 59. However, the motion was filed more than
    ten days after the entry of the final order, and thus is untimely as
    a rule 59 motion. See 
    id.
     R. 59(b). Furthermore, it is the party’s
    obligation to identify whether and what type of relief may be
    available under the rules. Gillett v. Price, 
    2006 UT 24
    , ¶ 8, 
    135 P.3d 861
    . “[T]he rules provide the source of available relief.” 
    Id. 20130317
    ‐CA                       3                
    2013 UT App 143
    Jensen v. Jensen
    “Accordingly, the form of a motion does matter because it directs
    the court and litigants to the specific, and available, relief sought.”
    
    Id. ¶6
         In sum, Mr. Jensen has failed to identify a substantial issue
    for review warranting further proceedings by this court. The trial
    court’s order granting the motion to modify child support is
    affirmed.2
    2. Mr. Jensen previously requested a remand to the trial court for
    the purpose of obtaining a ruling on his motion to set aside the
    judgment, which was denied. Trial courts retain jurisdiction to rule
    on motions filed pursuant to rule 60(b) of the Utah Rules of Civil
    Procedure pending appeal. Baker v. Western Sur. Co., 
    757 P.2d 878
    ,
    880 (Utah Ct. App. 1988). An order denying relief under rule 60(b)
    is a separate appealable order. Amica Mut. Ins. Co. v. Schettler, 
    768 P.2d 950
    , 970 (Utah Ct. App. 1989).
    20130317‐CA                       4                 
    2013 UT App 143