Marriage of Ainsworth
Filed 4/22/13 Marriage of Ainsworth CA1/4
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
In re the
Marriage of LISA MACKIN AINSWORTH and PATRICK AINSWORTH.
LISA MACKIN
AINSWORTH,
Appellant,
v.
PATRICK
AINSWORTH,
Respondent.
A136019
(San Mateo
County
Super. Ct.
No. FAM091742)
Lisa
Mackin Ainsworth challenges the trial court’s order granting her certain relief
but declining to set aside various orders in this
notice of appeal was not timely
filed, we lack jurisdiction to consider the merits of her appeal and therefore
dismiss it.
I.
Procedural History and
Discussion
A judgment was entered in this
action on March 17, 2009,
ordering respondent Patrick Ainsworth to pay child and spousal support. Lisa filed a motion in May 2010 seeking
to modify or set aside the support orders and to adjudicate certain omitted
assets. She later filed a motion seeking
to have a receiver appointed to take control of certain real property and investment
accounts. A hearing was held on the
motions on November 10, 2011,
and January 19, 2012.
of decision on February 22.
The
trial court filed its “Final Statement of Decision and Orders†on
April 4. The court devoted
17 pages of thoughtful analysis to the various issues raised by the
parties, and ruled in Lisa’s favor on several of them. The court declined, however, to set aside a
December 2008 order or the support provisions of the 2009 judgment based on
fraud, as Lisa had urged.
The
trial court’s April 4 statement of decision concluded with the following
sentence: “This final Statement of
Decision shall also constitute the order of the court.†Although a statement of decision generally is
not appealable, this court must treat the trial court’s April 4 order as
such, because it “is signed and filed and does, in fact, constitute the court’s
final decision on the merits.†(
(2007) 40 Cal.4th 894, 901.) Indeed,
Lisa represented in her civil case information statement filed in this court
that she was appealing from the trial court’s April 4 order (as opposed to
a subsequent judgment).
According
to an “Affidavit of Mailing†filed in the trial court that included the heading
“CLERK’S CERTIFICATE OF MAILING,†a superior court clerk served a copy of the
April 4 order that same day.
name="_ftnref3" title="">[3] Parties generally have 60 days from the
clerk’s service of an appealable order to file a notice of appeal unless the
time period is extended.
(Rules 8.104(a)(1)(A) [establishing 60-day deadline for notice of
appeal after clerk serves “a file-stamped copy of the judgmentâ€], 8.104(e)
[“ ‘judgment’ †in rule 8.104(a) includes appealable order];
[clerk’s mailing of file-stamped appealable order along with certificate of
mailing satisfies rule 8.104(a)(1)].)
Thus, the deadline for Lisa’s notice of appeal would have been
June 4 if the time period had not been extended (60 days, plus one day
because June 3 was a Sunday (rule 1.10(b))).
The
time period to appeal was extended, however, because on April 18, Lisa
filed a combined motion for a new trial/motion to vacate/motion to correct
clerical errors. But under either the
rules applicable to motions for new trials or the rules applicable to motions
to vacate, the extension was not long enough to render her notice of appeal
timely.
Under
the extension rules applicable for a motion
for a new trial, rule 8.108(b)(1) provides that the time to appeal is
extended until the earliest of
(A) 30 days after an order denying the motion or a notice of entry of that
order, (B) 30 days after denial of the motion by operation of law, or
(C) 180 days after entry of judgment.
The
motion for a new trial was denied by operation of law on June 4 because
the trial court had only 60 days from the service of the appealable order
to rule on the motion. (Code Civ. Proc.,
§ 660.) The motion for a new trial
was denied by operation of law on June 4 even though on June 19 a minute
order was entered denying the motion, and on July 10 the trial court filed
its “findings and order after hearing†setting forth the reasons for the
denial. (Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433,
1450-1451 [60-day time limit of Code Civ. Proc., § 660 is jurisdictional
and cannot be evaded by subsequent order].)
Because the motion for a new trial was denied by operation of law on
June 4, the time to appeal was extended for 30 days, or until July 5
(because July 4 was a holiday (rule 1.10(b))). Lisa’s notice of appeal was not filed until
July 18. Thus, the notice of appeal
was untimely under the extension rules applicable when a motion for a new trial
is filed. (See Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs
(The Rutter Group 2012) ¶ 3:67, p. 3-33 [maximum appeal time when a
motion for new trial is filed is 90 days after appealable judgment or order].)
Under
the extension rules applicable when a valid motion to vacate is filed,
rule 8.108(c) provides that the time to appeal is extended until the
denying the motion, (2) 90 days after the first notice of intention to
move, or motion, is filed, or (3) 180 days after entry of judgment. Here, the earliest of these dates was
July 17, which was 90 days after appellant filed her motion to vacate on
April 18. (Rule 8.108(c)(2).) Thus, appellant’s July 18 notice of
appeal was untimely under the extension rules applicable when a valid motion to
vacate is filed.
In
short, Lisa’s notice of appeal was untimely regardless whether the extension
rules applicable to motions for new trials or motions to vacate apply. Because our review of the record revealed
that Lisa’s appeal was possibly untimely, we requested supplemental briefing on
the issue. Lisa argues in her
supplemental brief that neither the superior court clerk nor any party served
the April 4 order, meaning that she had 180 days after entry of judgment (until
October 1) to file her notice of appeal.
(Rule 8.104(a)(1)(C) [notice of appeal must be filed 180 days after
entry of judgment if no service by clerk or party].) Lisa asserts that service “
April 4. (Original boldface.) The record suggests otherwise.
First,
the trial court’s file includes a certificate/affidavit of mailing stating that
the April 4 order was served on the same day the order was filed. (Ante,
fn. 3.) Second, Lisa herself
represented in her civil case information statement that the April 4 order
was served that same day. Third, the
combined motion for a new trial/motion to vacate/motion to correct clerical
errors was filed by Lisa on April 18, just two weeks after the
April 4 order, which shows that she was, in fact, served with the
statement of decision as the clerk stated in the affidavit of mailing.
April 4 order was served that same day, triggering the deadline to appeal.
In
her supplemental brief, Lisa also directs this court to an excerpt from the
“self-help†section of the state court’s website explaining that motions for a
new trial and motions to vacate extend the deadlines to file a
Appeal
California Rules of Court,†upon which this court has relied in concluding that
Lisa’s appeal is untimely. (
It
is well settled that if an appeal is untimely, the appellate court has no
jurisdiction to consider its merits and the appeal must be dismissed.
(Rule 8.104(b); Silverbrand
v. County of Los Angeles (2009) 46 Cal.4th 106, 113; Estate of Hanley (1943) 23 Cal.2d 120, 123; Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 762.)
III.
Disposition
The appeal is dismissed. Respondent Patrick shall recover his
_________________________
Humes,
J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
name="_ftn1" title="">[1]
As is customary in marital dissolution cases, we refer to the parties by their
first names for ease of reading and to avoid confusion, not out of
disrespect. (In re Marriage of James & Christine C. (2008) 158
Cal.App.4th 1261, 1264, fn. 1.)
name="_ftn2" title="">[2]
All date references are to the 2012
calendar year unless otherwise specified.
