Smith v. Smith

This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 77

IN THE

SUPREME COURT OF THE STATE OF UTAH

A. S.,

Appellant,

v.

R. S.,

Appellee.

No. 20151023

Filed November 14, 2017

On Certification from the Court of Appeals

Fourth District, Provo Dep’t

The Honorable Fred D. Howard

No. 084401555

Attorneys:

F. Lavar Christensen, Draper, for appellant

Ronald D. Wilkinson, Nathan S. Shill, Orem,

Sara Pfrommer, Salt Lake City, for appellee

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 A.S. (Father) appeals the district court order awarding R.S.

(Mother) attorney fees and costs for the underlying juvenile court

proceedings. We do not reach the merits of this case because we hold

that we lack jurisdiction. 1 Mother is awarded reasonable attorney

1 See infra ¶ 35 n.12.

A. S. v. R. S.

Opinion of the Court

fees and costs on appeal. We remand this case to the district court for

a determination of those fees and costs.

BACKGROUND

¶2 Mother and Father petitioned for divorce in the district

court in 2008. In 2012, Father petitioned to terminate Mother’s

parental rights based on unsubstantiated allegations of her sexual

abuse of their two children. Mother counter-petitioned the court to

terminate Father’s parental rights or to award her physical custody

of the children. As a result of the exclusive original jurisdiction of the

juvenile court over matters concerning “the termination of the legal

parent-child relationship,” Utah Code section 78A-6-103(1)(g), and

“mak[ing] a finding of substantiated, unsubstantiated, or without

merit,” id. section 78A-6-103(6), on matters of “a severe type of child

abuse or neglect,” id. section 78A-6-323(1), the juvenile court heard

the petition rather than the district court. The juvenile court and the

district court maintained concurrent jurisdiction under id.

section 78A-6-104 until the exclusive original jurisdiction of the

juvenile court was extinguished. Id. § 78A-6-104(1)(b). (“The district

court or other court has concurrent jurisdiction with the juvenile

court: . . . with regard to proceedings initiated under Part 3, Abuse,

Neglect, and Dependency Proceedings, or Part 5, Termination of

Parental Rights Act.”). Therefore, while the district court had

continuing jurisdiction over the divorce proceedings, including a

determination “of support, custody, and parent-time . . . incidental to

the determination of a cause in district court,” the juvenile court

could “change the custody . . . support, parent-time, and visitation

rights previously ordered in the district court as necessary to

implement the order of the juvenile court for the safety and welfare

of the child. . . . so long as the jurisdiction of the juvenile court

continues.” Id. § 78A-6-104(3)–(4)(b). “The juvenile court has

jurisdiction over questions of custody, support, and parent-time, of a

minor who comes within the court’s jurisdiction . . . .” Id. § 78A-6-

104(5). The juvenile court denied Father’s petition to terminate

Mother’s parental rights, granted Mother custody of the minor

children, cited both Father and J.S. (Stepmother) for contempt, and

ordered Father and Stepmother to pay all legal fees, costs, and

expenses incurred by Mother.

¶3 Father and Stepmother prematurely appealed the juvenile

court’s order before it became a final order, because the award for

attorney fees and costs had not yet been reduced to a judgment. See

DFI Props. LLC v. GR 2 Enters. LLC, 2010 UT 61, ¶ 20, 242 P.3d 781

(2010) (“This case represents another in the line of cases where we

have held that a judgment awarding attorney fees in a yet-to-be-

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Opinion of the Court

determined amount is not final for purposes of appeal. . . . [and] we

lack jurisdiction over appeals from such judgments . . . .”). But the

court of appeals, apparently unaware that the order appealed from

was not a final order, failed to dismiss the notice of appeal and

instead issued an opinion affirming “[t]he juvenile court’s order . . .

in all respects except for the determination of contempt,” which it

vacated because of lack of notice and hearing and remanded to the

juvenile court for a hearing on the contempt allegations. In re E.S. &

N.S., 2013 UT App 222, ¶ 9, 310 P.3d 744. Because the time to petition

for writ of certiorari on the court of appeals’ opinion has lapsed, the

parties are foreclosed from arguing that the court of appeals lacked

jurisdiction, and we treat it as a final judgment. 2

¶4 During the pendency of the first appeal, the juvenile court

continued to have jurisdiction over, and hold status hearings

regarding, the welfare of the children. On remand from the court of

appeals, the juvenile court held contempt proceedings on December

13, 2013, issuing its contempt order against Father and Stepmother

on January 23, 2014. A child welfare status hearing was held on

January 16, 2014 with a follow-up phone conference on February 20,

2014. The juvenile court, having determined that the outstanding

motions regarding the child welfare case were resolved as of its

March 17, 2014 order, released the Guardian ad Litem from the

matter and terminated the juvenile court’s jurisdiction, noting that a

separate order regarding the contempt charges was issued and that

2 Although the proper action for the court of appeals in this case

would have been to reject the appeal for lack of jurisdiction because

the judgment was not final, there is now no remedy for the error. We

have held that “jurisdiction is a threshold issue, which can be raised

at any time and must be addressed before [turning to] the merits of

other claims.” Am. W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 10,

342 P.3d 224 (alteration in original) (citation omitted). “Generally

speaking, the [final judgment] rule prevents a party from

prematurely appealing a non-final judgment, and thereby preserves

scarce judicial resources.” Loffredo v. Holt, 2001 UT 97, ¶ 11, 37 P.3d

1070. However, the ability to raise questions of jurisdiction expires

after the last available opportunity to appeal final judgments on a

particular set of issues has passed. This comports with our res

judicata doctrine precluding claims after “a ‘final judgment on the

merits in [a] previous action.’” Jordan Constr., Inc. v. Fed. Nat’l Mortg.

Ass’n, 2017 UT 28, ¶ 43, ___ P.3d ___ (alteration in original) (citations

omitted).

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Opinion of the Court

the outstanding order for attorney fees would be referred to the

district court for entry of a judgment, because that court now had

exclusive jurisdiction. See UTAH CODE § 78A-6-103 to -104. The

findings and order of the juvenile court are “binding on the parties to

the divorce action as though entered in the district court” when “a

copy . . . has been filed with the district court.” Id. § 78A-6-104(4)(c)

(emphasis added). However, once the district court again has

exclusive continuing jurisdiction, the district court is able to make

changes to those orders to ensure the appropriate needs of the

children and the parties are met. See Id. § 30-3-5(3)–(4) (“The [district]

court has continuing jurisdiction to make subsequent changes or

new orders for the custody of the children and their support,

maintenance, health, and dental care, and for distribution of the

property and obligations for debts as is reasonable and necessary. . . .

Child support, custody, visitation, and other matters related to

children born to the mother and father after entry of the decree of

divorce may be added to the decree by modification.”).

¶5 As jurisdiction over the case had been transferred to the

district court, Mother filed a motion for a judgment on the attorney

fees and costs ordered by the juvenile court, with accompanying

memorandum and affidavit. Father opposed the motion, arguing

that the court did not have authority to award attorney fees and

costs, but not addressing the specific validity of the amount

requested. The case first came before a commissioner, who ended the

proceedings when Father’s counsel began to argue the lack of

authority of the juvenile court to award attorney fees. The

commissioner correctly noted that a juvenile court judge, with the

equivalent authority of a district court judge, had made the ruling

and that the commissioner did not have authority to change the

ruling of “a higher judicial authority . . . [that says Mother] gets

attorney’s fees.” “[A commissioner] cannot decide that a higher

judicial authority got it wrong.” The matter then came before the

district court, which granted Mother’s motion for attorney fees,

found that the fees requested were reasonable, and entered a

judgment in the amount of $180,780.47 against Father. This judgment

and order was dated April 6, 2015.

¶6 Father then had 14 days 3 to file a motion for a new trial

under Utah Rule of Civil Procedure 59. UTAH R. CIV. P. 59(b) (2014)

3 Prior to the 2014 amendment of Utah Rule of Civil Procedure 59,

parties only had 10 days to file a motion. It was amended again in

2016 to allow 28 days to file a rule 59 motion.

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(“A motion for a new trial shall be served not later than 14 days after

the date of entry of the judgment.”). Thus, the deadline for filing a

rule 59 motion in this case was April 20, 2015. Father admits in his

brief that “[o]n April 20–21, 2015” he filed “documents associated

with a U.R.C.P. Rule 59 motion.” In the district court’s order denying

Father’s rule 59 motion, the court correctly stated that the Father’s

motion was filed on April 21, 2015. Father attempts to overcome this

timeliness issue in his brief to this court with the following

explanation: “(NOTE: That date [April 21st] is in error. It was filed

electronically the day before.)” However, the docket shows that

although the memorandum and its exhibits were filed on April 20,

2015, just before midnight, the electronic time stamp shows that the

rule 59 motion along with several other supporting documents were

filed just after midnight on April 21, 2015, ranging from three to

sixteen minutes after midnight.

¶7 Because counsel for Father was not able to account for this

procedural defect at oral arguments, we ordered supplemental

briefing from both parties regarding the timeliness of the rule 59

motion and whether, if the rule 59 motion was untimely, the filing of

the memorandum was sufficient to confer jurisdiction. Father did

not meet his burden of persuasion in his supplemental brief, and we

therefore hold that we do not have jurisdiction to rule on the merits.

STANDARD OF REVIEW

¶8 The timeliness of a rule 59(e) motion is a matter of law

reviewed for correctness. A district court judge “err[s] as a matter of

law in granting [an] untimely rule 59 motion.” Sanpete Am., LLC v.

Willardsen, 2011 UT 48, ¶ 66, 269 P.3d 118. Whether jurisdiction to

reach the merits of an appeal “exists is a question of law which we

review for correctness, giving no deference to the court below.”

Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572. Jurisdiction is a

question that may be raised by the court or a party at any time

during the proceedings. See Workers Comp. Fund v. Argonaut Ins. Co.,

2011 UT 61, ¶ 8, 266 P.3d 792 (“Because we agree that [Father] did

not file a timely notice of appeal, we are without jurisdiction to

address the issues . . . raise[d] and therefore dismiss this appeal.”).

This court has jurisdiction to hear this appeal under Utah Code

section 78-3-102(3)(b).

ANALYSIS

¶9 Because the jurisdictional issue is controlling in this case, we

will only address the rule 59 motion filed by Father and its lack of

timeliness, thereby divesting this court of jurisdiction. See State v.

Sun Sur. Ins. Co., 2004 UT 74, ¶ 7, 99 P.3d 818 (“Because this case is

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Opinion of the Court

fully resolved by our analysis of the jurisdiction question, we do not

address the [case on its merits].”). We first examine the rules that

govern electronic filing and the rules’ requirements. We then discuss

the untimely filing of the Rule 59 motion in this case and determine

that we lack jurisdiction to address the merits.

I. THE UTAH TRIAL COURT SYSTEM ELECTRONIC

FILING GUIDE ESTABLISHES THE FILING DATE

AND TIME OF DOCUMENTS

¶10 The Judicial Council has mandated that all documents in

district, juvenile, and justice courts be filed electronically, with rare

exceptions. 4 See UTAH CODE JUD. ADMIN. Rules 4-503 (district civil,

probate, and domestic cases required as of April 1, 2013); 4-603

(district criminal cases required as of March 31, 2014); 4-901 (juvenile

courts required as of December 1, 2015 for existing cases and as of

August 1, 2016 for new cases); and 9-302 (justice courts required as of

January 1, 2017). The Judicial Council has also provided a guide to

assist attorneys and courts with these transitions and establish

guidelines and requirements for the e-filing system. See STATE OF

UTAH JUDICIAL COUNCIL, UTAH TRIAL COURT SYSTEM ELECTRONIC

FILING GUIDE (2013) [hereinafter E-FILING GUIDE].

¶11 Utah Code of Judicial Administration Rule 4-503(1) (2013)

requires that “pleadings and other papers filed in civil cases in the

district court on or after April 1, 2013 shall be electronically filed

using the electronic filer’s interface.” 5 Additionally, under its

“authority for establishing and representing the official position of

the judiciary on issues within the jurisdiction of the Council,” id. 1-

102(2), the Judicial Council has published the e-Filing Guide to set

requirements and assist attorneys with electronic filing. “Electronic

filing is subject to the rules of the Utah Judicial Council and the Utah

Supreme Court. In the event of a conflict between the electronic

filing system requirements and the rules of the Judicial Council or

the Utah Supreme Court, the rules of the council or court will

prevail.” E-FILING GUIDE, supra ¶ 10, at 2. The e-Filing Guide defines

the official filing date: “The filing date and time is not when the filer

4 These exceptions include “[a] self-represented party who is not

a lawyer” and “[a] lawyer whose request for a hardship exemption

from this rule has been approved by the Judicial Council.” UTAH

CODE JUD. ADMIN. Rule 4-503(2)(A)–(B).

5 The current version, rule 4-503(1) (2016), contains the same

language. See supra n.4 for exceptions to this rule.

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submits the document to their Service Provider. For purposes of

electronic filing, the file date will be the date and time recorded

when the filing was received and was posted by the court’s

electronic filing manager.” Id. at 3. The e-Filing Guide also states that

technical failures will not excuse a late filing. Id. (“The filer is

responsible for a timely filing and should take appropriate action if

the electronic filing system is inoperable or fails to notify the filer

that the court has received the filing.”).

¶12 The Board of District Court Judges published the E-filing in

Utah’s State Courts: Frequently Asked Questions for Attorneys to answer

procedural questions regarding e-filing. STATE OF UTAH DISTRICT

COURTS, E-FILING IN UTAH’S STATE COURTS: FREQUENTLY ASKED

QUESTIONS FOR ATTORNEYS (2013) [hereinafter E-FILING FAQS]. This

document further clarifies that “if the efiling system is temporarily

unavailable or [the] filing fails because of a technical problem,” it

will not excuse a late filing. Id. at 2–3. “The filer is responsible for a

timely filing. Best practice is to allow adequate time to file a time-

sensitive document.” Id. The e-Filing FAQs also recommends that

“[i]f a technical failure of the efiling system interferes with a case

deadline, [the filer] may wish to file a stipulation or motion,”

recommending that the filer “[c]ontact the efiling specialist at the

court for direction.” Id.

II. THE RULE 59 MOTION TO ALTER OR AMEND WAS

NOT TIMELY FILED

¶13 It is undisputed that the rule 59 motion in this case was filed

after the deadline established by the electronic filing system docket.

The Judicial Council has placed the burden of ensuring timely filing

on the filer. “The filer is responsible for a timely filing and should

take appropriate action if the electronic filing system is inoperable or

fails to notify the filer that the court has received the filing.” E-FILING

GUIDE, supra ¶ 10, at 3.

¶14 Father argues that the timely filed memorandum in support

of his untimely rule 59 motion “is a ‘de facto’ equivalent” that “has a

sufficient caption and label to fairly and equitably meet the

appropriate standard.” “If the Rule 59 motion was somehow to be

treated as untimely, the prior filing of the supporting memorandum

and all that it expressed, represents and incorporates, is sufficient to

confer appellate jurisdiction.” However, the only legal support he

offers for deeming the memorandum as a motion is a line of cases

concerning motions to reconsider that was abrogated by Gillett v.

Price, 2006 UT 24, 135 P.3d 861.

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¶15 Additionally, Father argues that his untimely rule 59 motion

should be considered “minimal, excusable and harmless error,

because it was “submitted in good faith” and was “excusable

neglect,” which is “a flexible standard.” Unfortunately, he supports

this theory with cases that do not address the mandate in Utah Rule

of Civil Procedure 6(b)(2) that divests the district court of authority

to allow an untimely rule 59 motion because of excusable neglect.

The plain language in rule 6(b)(2) gives no discretion to the district

court in deciding whether to accept an untimely filed rule 59 motion.

Therefore, his rule 59 motion cannot be remedied by an equitable

plea of excusable neglect.

¶16 Father’s exclusive reliance on cases that are easily

distinguishable or have been abrogated instead of citing valid legal

authority and his failure to address rule 6(b)(2)’s proscription on a

district court’s ability to accept untimely rule 59 motions renders his

briefing on the relevant issues of the supplemental brief inadequate.

“Appellants have the burden to clearly set forth the issues . . . and to

provide reasoned argument and [valid] legal authority.” ASC Utah,

Inc. v. Wolf Mountain Resorts, L.C., 2013 UT 24, ¶ 16, 309 P.3d 201

(citing UTAH R. APP. P. 24(a)(9)); see also 2010-1 RADC/CADC Venture,

LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 30, ___ P.3d ___ (“[I]t is not the

size of an argument that matters. Some parties adequately brief an

argument in a well-crafted paragraph. Others manage to

inadequately brief an argument in fifty pages.”) Arguments, like

gardens, take work, and a party who hopes to prevail on appeal

should be willing to dig in the dirt and not expect that opposing

counsel or the court will do that work for them.

A. The Timely Filed Memorandum in Support of the Rule 59 Motion

to Alter or Amend Is Insufficient to Cure the Late Filing of

the Rule 59 Motion

¶17 Father seeks to use the timely filed memorandum as a

substitute for the untimely filed “formal” rule 59 motion. This we

cannot do because the plain language of rule 59 requires that “a

motion to alter or amend the judgment . . . be filed no later than 28

days after entry of judgment.” UTAH R. CIV. P. 59(e) (2014) (emphasis

added). Therefore, a timely memorandum in support of an unfiled

motion will not act as a substitute for an untimely filed rule 59

motion. Father’s argument that Utah Rule of Civil Procedure 7 was

amended to require merger of the motion and the memorandum at a

later date than when he filed his rule 59 motion is also of no avail,

nor is his claim that rule 61 grants him leeway if the untimely filing

of the motion was due to “harmless error.”

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¶18 Motions are defined in the Utah Rules of Civil Procedure.

UTAH R. CIV. P. 7(b)(1) (2014) 6 (defining a written motion as “[a]n

application to the court . . . [that] shall . . . state succinctly and with

particularity the relief sought and the grounds for the relief

sought”). The requirements for initial memoranda are listed

separately.

All motions, except uncontested or ex parte

motions, shall be accompanied by a supporting

memorandum. . . . Initial memoranda shall not exceed

10 pages of argument without leave of the court. . . .

The court may permit a party to file an over-length

memorandum upon ex parte application and a

showing of good cause. . . . A memorandum with more

than 10 pages of argument shall contain a table of

contents and a table of authorities with page

references. A party may attach as exhibits to a

memorandum relevant portions of documents cited in

the memorandum, such as affidavits or discovery

materials.

UTAH R. CIV. P. 7(c)(1)–(3) (2014). 7 These definitions and

requirements use “shall,” indicating that they are mandatory.

¶19 Rule 7 clearly distinguishes between a motion and a

memorandum. Motions are required to be a succinct document,

stating “with particularity the relief sought and the grounds for the

relief sought.” UTAH R. CIV. P. 7(b)(1) (2014). Moreover, a rule 59

motion also requires a separate, supporting memorandum. UTAH R.

CIV. P. 7(c)(1) (2014). Here, the only timely filed document was the

supporting memorandum. Without a timely filed motion, the

supporting memorandum is of no value. We note that even if the

6 Rule 7 was substantially altered in November 2015, with

additions in 2017 “addressing limits on orders to show cause. . . .

initiated by parties” and “clarify[ing] the discretion the court retains

to manage its docket.” UTAH R. CIV. P. 7(b)(1) (2017) advisory

committee’s note. We will refer to the 2014 version of rule 7 in this

opinion as that was the version of the rule in operation at the time of

the rule 59 motion under consideration.

7 Sections (c)(3)(A) and (c)(3)(B) are related to memoranda

supporting and opposing summary judgment and are not relevant

or included. However, sections (c)(3)(C) and (c)(3)(D) are relevant

and the language is included here.

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motion had been timely filed, the acceptance of the supporting

memorandum would have been at the court’s discretion because

Father filed an overlength memorandum without seeking leave of

the court. The memorandum was 20 pages instead of the 10 allowed.

See UTAH R. CIV. P. 7(c)(2) (2014). And, notwithstanding its

overlength, it did not contain the mandatory “table of contents and

. . . table of authorities with page references” required for overlength

memoranda. UTAH R. CIV. P. 7(c)(3)(C) (2014).

¶20 We have held that where a party timely filed an insufficient

motion that is barred from untimely filing by rule 6(b)(2), the district

court does have discretion to allow that party “to supplement the

originally insufficient motion,” because “sufficiency is not a logically

necessary component of timeliness.” Menzies v. Galetka, 2006 UT 81,

¶ 68, 150 P.3d 480; see also Blosch v. Natixis Real Estate Capital, Inc.,

2013 UT App 214, ¶¶ 15–18, 311 P.3d 1042. However, these cases

dealt with timely filed, albeit insufficient, motions and not timely

filed memoranda in support of untimely filed motions. In the instant

case, Father did not file a timely motion, sufficient or insufficient,

and district courts do not have discretion to allow a party to

supplement an untimely motion barred by rule 6(b)(2).

¶21 Historically, we have held that an “incorrect title placed

upon the pleading was not a bar,” Watkiss & Campbell v. Foa & Son,

808 P.2d 1061, 1064 (Utah 1991), and allowed district courts to treat

motions to reconsider as the appropriate motion that would toll the

time to appeal. See Bair v. Axiom Design, LLC, 2001 UT 20, ¶ 9, 20 P.3d

388 (“[I]t is the substance, not the labeling, of a motion that is

dispositive in determining the character of the motion.”); Watkiss,

808 P.2d at 1064–65. (An incorrectly titled pleading is not necessarily

a bar, and where the court has treated it as a motion that will toll the

time to file an appeal, “the time period to file an appeal beg[ins] to

run . . . when the judge sign[s] the order of denial”); Gallardo v.

Bolinder, 800 P.2d 816, 817 (Utah 1990) (“If the nature of the motion

can be ascertained from the substance of the instrument, we have

heretofore held that an improper caption is not fatal to that motion.”

(citations omitted)). Father relies heavily on these cases for support

of the idea that “substance over form is controlling.” Unfortunately

for him, this entire line of cases was abrogated by Gillett eleven years

ago, when we stated “that it [was] time this practice [came] to an

end.” 2006 UT 24, ¶¶ 7–8 (“We . . . hold that, regardless of the

motion’s substance, postjudgment motions to reconsider and other

similarly titled motions will not toll the time for appeal because they

are not recognized by our rules.”); accord Radakovich v. Cornaby, 2006

UT App 454, ¶¶ 5–6, 147 P.3d 1195.

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¶22 Notwithstanding that “[t]he filing of postjudgment motions

to reconsider ha[d] become a common litigation practice,” Gillett,

2006 UT 24, ¶ 1, despite not being authorized by the Utah Rules of

Civil Procedure, we determined that we would no longer “treat[]

motions to reconsider as rule-sanctioned motions based on the

substance of the motion,” id. ¶ 8. “Motions to reconsider are not

sanctioned by our rules and therefore do not toll the time for appeal

under any circumstance.” Id. ¶ 5. While Gillett is instructive, its

particular bar applies specifically to “postjudgment motions and

other similarly titled motions,” which are not at issue in this case

concerning a motion for a new trial under Utah Rule of Civil

Procedure 59. Id. ¶¶ 7–8 (“We . . . hold that, regardless of the

motion’s substance, postjudgment motions to reconsider and other

similarly titled motions will not toll the time for appeal because they

are not recognized by our rules.”). Father’s argument that we should

accept his untimely filed rule 59 motion based on the cases regarding

motions to reconsider that Gillett abrogated is inapt.

¶23 “In our system, the rules provide the source of available

relief. They ‘[are] designed to provide a pattern of regularity of

procedure which the parties and the courts [can] follow and rely

upon.’” Id. ¶ 8 (alterations in original) (citation omitted). “The rules

of court are intended to refine and explain the procedure set forth in

the statutory scheme . . . .” 21 C.J.S Courts § 166 (2017). Gillett

requires that “when a party seeks relief from a judgment, it must

turn to the rules to determine whether relief exists, and if so, direct

the court to the specific relief available.” 2006 UT 24, ¶ 8. Despite

Father’s assertions to the contrary, “the form of a motion does

matter,” id., insofar as improper form often leads to insufficient

substance. 8 “’[T]he form of the motion does matter’ when

determining whether the motion tolls the time for appeal ‘because it

directs the court and litigants to the specific, and available, relief

sought.’” Workers Comp. Fund v. Argonaut Ins. Co., 2011 UT 61, ¶ 11,

266 P.3d 792 (citation omitted). Therefore, Father’s timely filed

memorandum, even were it to be accepted by the court despite its

structural and procedural flaws, cannot be a substitute for a timely

filed rule 59 motion: not only was its form improper, being titled and

structured as a supporting memorandum, but also it failed in

8 We do not hold that any clerical error or defect in form would

render a motion invalid, but the substance of the filed document

must be in accord with the substantive requirements of the intended

motion.

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substance to succinctly state “with particularity the relief sought and

the grounds for the relief sought.” UTAH R. CIV. P. 7(b)(1) (2014); see

also Id. R. 6(b)(2); UTAH R. APP. P. 4(b).

¶24 Father’s assertion that the amendment of rule 7(c)(1) seven

months later renders his error “innocent, harmless and insignificant”

is without merit. He cannot rely on a rule that was amended after his

untimely filing. His obligation was to file within the constraints of

the Utah Rules of Civil Procedure as they existed at the time of filing.

Future amendments do not remedy past failures. Furthermore, his

memorandum would still fail to qualify as sufficient even under the

new scheme. The 2015 version of rule 7 requires that “[a] request for

an order must be made by motion. The motion . . . must state the

relief requested, and must state the grounds for the relief requested.”

UTAH R. CIV. P. 7(b) (2015). Nor does it comply with requirements of

form or substance detailed in rule 7(c)(1). Father also attempts to

shore up his late filing by citing the harmless error standard in Utah

Rule of Civil Procedure 61. While this rule provides that courts

should “disregard any error or defect” that “does not affect the

substantial rights of the parties” during proceedings, this rule is not

intended to provide lawyers grounds to seek “a new trial or

otherwise disturb[] a judgment or order” by a finding that a mistake

was “harmless error.” Id. R. 61. Rather, it allows for the remedy of

“harmless error” in these circumstances only when “refusal to take

such action appears to the court inconsistent with substantial

justice.” Id. Regardless, Utah Rule of Civil Procedure 6(b)(2)

forecloses remedying a late rule 59(e) motion by a court’s finding the

tardiness to be “harmless error.”

¶25 In summary, the timely filed memorandum is not sufficient

in form or substance to substitute for a rule 59(e) motion. It did not

“state succinctly and with particularity the relief sought and the

grounds for the relief sought.” UTAH R. CIV. P. 7(b)(1) (2014). A

subsequent amendment of a procedural rule regarding the filing of

motions does not affect the procedural requirements that existed at

the time a motion is filed. Regardless, Father’s memorandum would

fail to meet the requirements of the amended version of rule 7 as

well as the 2014 version of rule 7. An untimely rule 59 motion is not

“harmless error” under rule 61 and is specifically prohibited from

being considered by the district court by Utah Rule of Civil

Procedure 6(b)(2).

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B. Utah Rule of Civil Procedure 6(b)(2) Prohibited the

District Court from Extending Time to File a

Motion Under Utah Rule of Civil Procedure 59(e)

¶26 Utah Rule of Appellate Procedure 4(b)(1) extends the 30-day

time to file an appeal to 30 days from the “entry of the dispositive

order” of any of several listed timely filed motions. See Blosch, 2013

UT App 214, ¶ 17 (“Tolling of the time to appeal under rule 4 is

triggered when a party ‘timely files in the trial court’ one of the

motions enumerated under rule 4(b), such as a rule 59 motion for a

new trial.” (citation omitted.)). This extension applies to Utah Rules

of Civil Procedure 50(b) (“motion for judgment [notwithstanding the

verdict]”); 52(b) (“motion to amend or make additional findings of

fact, whether or not an alteration of the judgment would be required

if the motion is granted”); 59(e) (“motion to alter or amend the

judgment”); 59(b) (“motion for a new trial”); 60(b) (motion for relief

“from a judgment, order, or proceeding” that occurs because of

“mistakes; inadvertence; excusable neglect; newly discovered

evidence; fraud, etc.”(UTAH R. CIV. P. 60(b)); and 73 (“motion or

claim for attorney fees”). 9 UTAH R. APP. P. 4(b)(1). The court “must

not extend the time to act under” the civil procedure motions that

extend the time to appeal under Utah Rule of Appellate Procedure

4(b)(1). UTAH R. CIV. P. 6(b)(2) (emphasis added).

¶27 In this case, Father filed a rule 59 motion to alter or amend

the judgment, but he filed it after the deadline of midnight on April

20, 2015. Father quotes Arches Condominium Association v. Robinson, 10

for the proposition that “trial courts may consider an untimely post-

trial motion, so long as it still has jurisdiction, absent an objection from

the opposing party that sets forth how it will be prejudiced . . . .” 131

A.3d 122, 129 (Pa. Commw. Ct. 2015) (emphasis added). This

argument fails for two reasons. Not only is the decision of a lower

court in Pennsylvania not binding, it is not even persuasive or

relevant in this case. Moreover, within the quotation itself, the

opinion requires that the trial court “still ha[ve] jurisdiction.” In the

9It also applies to “[a] motion for a new trial under Rule 24 of the

Utah Rule of Criminal Procedure.” UTAH R. APP. P. 4(b)(1)(G).

However, the rules of criminal procedure are not at issue in this case.

10 A case decided by a court he repeatedly mistakenly refers to as

the “Pennsylvania Supreme Court.” He also fails to provide pincites

for most of the quotations or citations from this case and others in his

brief.

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A. S. v. R. S.

Opinion of the Court

present case, the district court was divested of jurisdiction by Utah

Rule of Civil Procedure 6(b)(2). “A court must not extend the time to

act under Rules 50(b) and (d), 52(b), 59(b), (d) and (e), and 60(c).”

UTAH R. CIV. P. 6(b)(2). In Arches, the trial court had not yet made a

final judgment, and so “the trial court, acting in its discretion,

[could] accept[] the untimely post-trial motion[],” 131 A.3d at 129

requesting the court “to reconsider awarding . . . attorney’s fees,” id.

at 126. In the present case, the district court had already issued a

final, appealable judgment and did not have discretion to consider

an untimely rule 59 motion. See UTAH R. CIV. P. 6(b)(2).

¶28 Father also cites Burdick v. Horner, Townsend & Kent, Inc. for

the proposition that the district court did not err as a matter of law in

ruling on the merits of the untimely rule 59 motion. 2015 UT 8, 345

P.3d 531. In Burdick, before a final judgment was entered, the United

States Supreme Court decided a case that might “impact the grant of

summary judgment against the [plaintiffs]. The court asked the

parties to brief the [statute of limitations] issue.” Id. ¶ 12. The

plaintiffs filed a motion for reconsideration that addressed not only

the [statute of limitations] issue on which the court asked for

briefing, but also “seeking a review of all claims previously granted

summary judgment and raising new claims for the first time.” Id.

¶ 13. The district court refused to admit new evidence that could

have been entered during the initial proceedings for summary

judgment, but did modify its order “to read that there were genuine

issues of material fact regarding the statute of limitations.” Id. ¶¶ 15–

16. In our review of the Burdick court’s ruling, we restated that

“motions to reconsider are not recognized anywhere in either the

Utah Rules of Appellate Procedure or the Utah Rules of Civil

Procedure,” and held that “’trial courts are under no obligation to

consider motions for reconsideration’ and ‘any decision to address or

not to address the merits of such a motion is highly discretionary.’”

Id. ¶ 34 (citations omitted). Once again, a final judgment had not

been entered in Burdick when the motion for reconsideration was

filed, and the trial court still had jurisdiction, distinguishing it from

the present case. Therefore, the court was not barred in Burdick from

considering the merits according to its discretion. However, in the

case before us, Utah Rule of Civil Procedure 6(b)(2) deprived the

district court of jurisdiction to hear the untimely rule 59 motion. This

was not an abuse of discretion because the court did not have

discretion to accept the untimely motion. This was error.

¶29 Next, Father cites a United States Supreme Court case,

Pioneer Investment Services, Co. v. Brunswick Associates Ltd. Partnership,

507 U.S. 380 (1993), to delineate factors to be considered when

analyzing “excusable neglect.” He “submits that these [factors] and

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Opinion of the Court

other applicable considerations are fully met and satisfied.” Under

Utah Rules of Civil Procedure, a “court may, for good cause, extend

the time . . . . on motion made after the time has expired if the party

failed to act because of excusable neglect,” except that “[a] court must

not extend the time to act under Rule[] . . . 59(e).” UTAH R. CIV. P. 6(b)

(emphasis added). Therefore, “excusable neglect” is not available as

a remedy for an untimely rule 59 motion, and Pioneer Investment

Services is inapplicable.

¶30 This court has held that an untimely rule 59(e) motion is a

complete bar for the district court to do anything other than to deny

the motion. See Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 67, 269

P.3d 118 (“A district court ‘may not extend the time for taking any

action under [rule 59(e)] except to the extent and under the

conditions stated in [the rule].’ Rule 59(e) contains no conditions

extending the timeliness of service beyond the ten-day limit.

Consequently, when a rule 59 motion is served later than ten days

after entry of judgment, ‘the trial court’s only alternative is to deny

the motion.’”11 (alterations in original) (citations omitted)); see also

Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982) (“When such an

untimely motion is made, the trial court's only alternative is to deny

the motion”). An untimely rule 59(e) motion will not toll the

deadline for filing an appeal. See Burgers, 652 P.2d at 1321 (“An

untimely motion for a new trial has no effect on the running of the

time for filing a notice of appeal.”); accord Garcia-Velazquez v. Frito

Lay Snacks Caribbean, 358 F.3d 611 (1st Cir. 2004) (basing its opinion

on Federal Rules of Civil Procedure (which our Utah Rules of Civil

Procedure mirror) and holding “that a late-filed motion under rule

59(e) did not toll the running of the notice of appeal period even

though the district court adjudicated the motion on its merits”).

¶31 Absent a timely-filed rule 59 motion, the district court

lacked the authority to rule on the merits of the untimely rule 59

motion. The district court’s order of October 27, 2015 is thus void

and the judgment and order of April 6, 2015 is the final judgment on

the underlying matter of attorney fees and costs.

III. THIS COURT LACKS JURISDICTION

TO RULE ON THE MERITS OF THIS CASE

¶32 Father argues that this court has jurisdiction because the

trial court properly exercised its discretion in considering the

11The ten-day limit was changed to 14 days in 2014, and then to

28 days in 2016.

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A. S. v. R. S.

Opinion of the Court

untimely rule 59 motion and because neither the trial court nor

Mother raised the issue of jurisdiction in the proceedings below.

Both arguments fail.

¶33 Father declares that “[i]t is a very significant fact and

equitable element of this issue and case that the district court itself

identified and found harmless and immaterial the alleged

untimeliness.” According to his theory, “court[s] ha[ve] inherent

authority to address prior misstatements in its rulings at any time

and no matter how the error might come to its attention. . . . to

maintain and protect the integrity of the courts.” Father cites Burdick

in support of his theory that trial courts have discretion whether to

consider a motion. Burdick v. Horner Townsend & Kent, Inc., 2015 UT

8, ¶ 50, 345 P.3d 531 (noting that “trial courts are under no obligation

to consider motions for reconsideration,” but “if a trial court decides,

in its discretion, to address the merits of a claim for the first time in

the motion to reconsider, that claim is preserved”). Because the

district court in the present case allegedly used its discretion in

allowing and considering the untimely rule 59 motion, Father argues

it was also “preserved,” and as a result the notice of appeal was

timely.

¶34 He also claims that because “[t]here was no objection by

Appellee or the district court,” this court should “find no abuse of

discretion in the district court accepting and ruling upon [the] Rule

59 Motion.” To buttress his argument, he cites to Warner v. Warner,

2014 UT App 16, 319 P.3d 711, and to Barnard v. Wassermann, 855

P.2d 243, 249 (Utah 1993) (“It is undoubtedly true that courts of

general and superior jurisdiction possess certain inherent powers not

derived from any statute. . . . Such inherent powers of courts are

necessary to the proper discharge of their duties.” (citation omitted).

¶35 But Father’s arguments are ineffective. Utah Rule of Civil

Procedure 6(b)(2) strips a district court of authority to hear an

untimely rule 59 motion, operating as a bar that prevents the district

court from considering the motion. Further, neither the district

court’s ruling on the untimely rule 59 motion, nor the lack of

objection by Mother in the underlying procedure, constitute a proper

waiver. The mandate of rule 6(b)(2) cannot be waived. It is not open

to discretion but is required, and failure to follow its mandate

constitutes error. It is irrelevant whether the district court treated the

motion as timely filed, because the issue before us is whether Father

appealed the district court’s final order as required by Utah Rule of

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Appellate Procedure 4(b)(1)(C), thereby establishing the jurisdiction

of this court. 12

12 We note that the terminology used to state which form of

jurisdiction is revoked by failure to comply with rules of procedure

has been imprecise in our precedent. The federal courts, in which

jurisdiction is an even more complicated issue have noted the

difficulty in categorizing jurisdiction. “As for ‘jurisdiction’: the word

is a many-hued term. Courts may have jurisdiction for some

purposes but not others.” United States v. Wey, 895 F.2d 429, 431 (7th

Cir. 1990) (citation omitted). Similarly, state courts across the nation

have grappled with the precise terminology to use. See, e.g., Zajac v.

Trail Cty Water Res. Dist., 881 N.W.2d 666, 668 (Mem) (N.D. 2016)

(“We have recognized ‘[t]imely filing of an appeal from a decision of

a [local governing body] is mandatory to invoke a district court’s

appellate subject matter jurisdiction over the appeal.’” (alterations in

original) (citation omitted); State v. Maldonado, 223 P.3d 653, 655

(Ariz. 2010) (“In current usage, the phrase ‘subject matter

jurisdiction’ refers to a court’s statutory or constitutional power to

hear and determine a particular type of case. Jurisdiction in this

sense cannot be conferred by the consent of the parties and a court

that lacks subject matter jurisdiction cannot adjudicate the action.

[State v.] Smith, however, employed a more expansive concept of

‘subject matter jurisdiction.’ . . . [State v.] Smith's remarks about

jurisdiction must have referred instead to the superior court’s

inability to enter a valid judgment of conviction based upon a

defective information. But concluding that a court cannot enter a

valid judgment because of a procedural error does not mean that the

court lacks subject matter jurisdiction.” (citing State v. Smith, 189 P.2d

205 (Ariz. 1948), abrogated by Maldonado, 223 P.3d)). Our own case

law offers some guidance as to how this court has interpreted the

difference between “appellate jurisdiction” and “subject matter

jurisdiction.”

In general, when we refer to “appellate jurisdiction,” we have

spoken in terms of the authority established in the Utah Constitution

or by statute of the appellate court to review the decision of a lower

court. See State v. Smith, 2015 UT 52, ¶ 3, 374 P.3d 1 (“The framework

for allocation of appellate jurisdiction between this court and the

court of appeals is set forth in, respectively sections 78A-3-102 and

78A-4-103 of the Utah Code.”); Pledger v. Gillespie, 1999 UT 54, ¶ 17,

982 P.2d 572 (“In its sua sponte decision, however, the court of

appeals overlooked Cigna’s proffered basis for appellate jurisdiction,

(continued . . .)

17

A. S. v. R. S.

Opinion of the Court

(continued . . .)

i.e., the Utah Arbitration Act, which states that ‘an appeal may be

taken . . . from any court order: (1) denying a motion to compel

arbitration.’ (alteration in original) (citing UTAH CODE ANN. § 78-31a-

19(1) (1996)); Holden v. N L Indus., Inc., 629 P.2d 428, 431 (Utah 1981)

(“This Court has never defined the term ‘appellate jurisdiction’ as it

is used in Article VIII, Section 4 of the Utah Constitution, but there

are ample authorities defining the term as used in other

constitutions. . . . ‘Appellate jurisdiction’ obviously connotes review

of the action of an inferior court. ‘Inferior court’ has been

appropriately defined as ‘any court subordinate to the chief

appellate tribunal in the particular judicial system.’ (citations

omitted)); Peatross v. Bd. of Comm’rs of Salt Lake Cty., 555 P.2d 281, 284

(Utah 1976) (“The standard rule is that appellate jurisdiction is the

authority to review the actions or judgments of an inferior tribunal

upon the record made in that tribunal, and to affirm, modify or

reverse such action or judgment.”); State v. Johnson, 114 P.2d 1034,

1037 (Utah 1941), overruled on other grounds by Boyer v. Larson, 433

P.2d 1015 (Utah 1967) (“Appellate jurisdiction is the jurisdiction to

review the decision or judgment of an inferior tribunal, upon the

record made in that tribunal, and to affirm, reverse or modify such

decision; judgment, or decree. . . . In the first place, it may not be

without use to ascertain what is here meant by appellate jurisdiction,

and what is the mode in which it may be exercised. The essential

criterion of appellate jurisdiction is, that it revises and corrects the

proceedings in a cause already instituted, and does not create that

cause. In reference to judicial tribunals, an appellate jurisdiction,

therefore, necessarily implies that the subject-matter has been

already instituted in and acted upon by some other court, whose

judgment or proceedings are to be revised.”). Only recently has that

construction of “appellate jurisdiction” been altered to include

substantive defects in an appeal. See Matter of Adoption of B.B., 2017

UT 59, ¶ 106, ___ P.3d ___ (“An order not identified in the notice of

appeal falls beyond our appellate jurisdiction. And the failure to

identify an order is a non-waivable (jurisdictional) defect.”); In re

Adoption of Baby E.Z., 2011 UT 38, ¶ 28, 266 P.3d 702 (holding that

subject matter jurisdiction can be limited by statute); Johnson v.

Johnson, 2010 UT 28, ¶ 8, 234 P.3d 1100 (defining subject matter

jurisdiction in terms of the authority granted by law).

On the other hand, “subject matter jurisdiction” has been used

when determining whether a court has jurisdiction to reach the

merits of a particular case because of procedural defects even though

(continued . . .)

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Opinion of the Court

¶36 The district court erred as a matter of law in treating the rule

59 motion as timely because the court’s only option according to the

procedural rules was to deny the motion because it was untimely.

We therefore vacate the October 27, 2015 order of the district court.

Because the rule 59 motion was untimely filed, the deadline to file a

notice of appeal was not tolled, and the 30-day window to file an

appeal began to run on April 6, 2015, the date of the district court’s

judgment and order. The notice of appeal filed on November 25,

2015, was therefore also untimely and does not establish jurisdiction.

IV. MOTHER IS AWARDED REASONABLE

ATTORNEY FEES AND COSTS ON APPEAL

¶37 In Smith v. Smith, the court of appeals noted that “[i]n

domestic cases, when a party has prevailed below and the trial court

has awarded attorney fees, we will generally award the same party

attorney fees when he or she prevails on appeal.” 1999 UT App 370,

¶ 18, 995 P.2d 14, rehearing denied (Utah Ct. App. 2000), cert. denied, 4

P.3d 1289 (Utah 2000); see also Gray v. Gray, 2001 UT App 274, 2001

WL 1097716 (Utah Ct. App. 2001) (awarding attorney fees to party

who was awarded attorney fees in the district court and prevailed on

appeal); Rosendahl v. Rosendahl, 876 P.2d 870, 875 (Utah Ct. App.

1994), cert. denied, 883 P.2d 1359 (Utah 1994) (same); Moore v. Moore,

872 P.2d 1054, 1056 (Utah Ct. App. 1994) (same).

(continued . . .)

it has appellate jurisdiction to review the appeal under statute. This

is a determination that courts should consider at the outset of every

case. See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 36 (“[C]ourts have

an independent obligation to . . . . raise and decide jurisdictional

questions that the parties either overlook or elect not to press.”

(omission in original) (citation omitted)). See also Gudmondson v. Del

Ozone, 2010 UT 33, ¶¶ 11–17, 232 P.3d 1059 (holding that timeliness

of filing the appeal was determinative of whether this court has

subject matter jurisdiction over the appeal).

The foregoing discussion is intended for context because it does

not have an impact on the issues that must be decided in this case.

Because there is no doubt that the timeliness of an appeal raises

jurisdictional questions, we need not determine whether this is a

matter of “appellate jurisdiction” or “subject matter jurisdiction.” “It

is axiomatic in this jurisdiction that failure to timely perfect an

appeal is a jurisdictional failure requiring dismissal of the appeal.”

Workers Comp. Fund v. Argonaut Ins. Co., 2011 UT 61, ¶ 10, 266 P.3d

792 (citation omitted).

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Opinion of the Court

¶38 The juvenile court found that

Mother substantially prevailed on all of her claims

and defenses to the abovementioned litigation tactics,

as well as the underlying actions. The attorney fees

incurred were reasonable and necessary to protect the

Mother’s custody and visitation rights. The Mother has

substantially prevailed on her claims that the Father

did not abide by the terms of their Decree of Divorce

and Amended Decree of Divorce, and is therefore

entitled to compensation for legal expenses from the

Father.

Consequently, the juvenile court awarded Mother attorney fees and

costs incurred in “establish[ing]” and “enforce[ing] an order of

custody, parent-time, child support, alimony, or division of property

in a domestic case, the court may award costs and attorney fees upon

determining that the party substantially prevailed upon the claim or

defense.” UTAH CODE § 30-3-3(1)–(2). Additionally, the juvenile court

awarded Mother attorney fees and costs pursuant to the provision in

the Decree of Divorce, stating that “[i]n the event either party fails to

perform his or her obligations under the Decree of Divorce, such

person shall pay all costs and attorney fees of the other party

incurred in enforcing the terms of the Decree of Divorce.”

¶39 As mandated by Utah Rule of Appellate Procedure 24(a)(9),

Mother, “seeking to recover attorney’s fees incurred on appeal,” has

“state[d] the request explicitly and set forth the legal basis for such

an award.” As Mother has prevailed in the domestic case in the

juvenile court and the district court below and has prevailed on

appeal, we award attorney fees and costs.

CONCLUSION

¶40 The e-Filing Guide establishes the filing date and time of

documents filed in Utah courts. Father’s rule 59(e) motion was

untimely. Father’s timely filed memorandum is not a substitute for

an untimely filed motion. Father’s untimely motion was barred

under rule 6(b)(2). Consequently, the district court did not have the

authority to rule on the untimely motion, and we vacate the district

court’s October 27th order denying Father’s rule 59 motion. This

leaves the April 6, 2015 judgment and order as the operative order.

¶41 An untimely motion under rule 59(e) does not extend the

time for filing a notice of appeal. Thus, Father’s notice of appeal filed

November 25, 2015, is also untimely, and this court lacks jurisdiction

to rule on the merits of this case. Mother, as the prevailing party on

appeal, is awarded reasonable attorney fees and costs on appeal. We

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Opinion of the Court

remand this case to the district court for a determination of those

fees and costs.

21