Jensen v. Jensen

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.

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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.

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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