Bergman v. Bergman, 1
| Decision Date | 15 April 1965 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 1 Ariz.App. 209,401 P.2d 163 |
| Parties | Ira J. BERGMAN, Appellant, v. Mary Ann BERGMAN, Appellee. * 12. |
| Court | Arizona Court of Appeals |
Patrick W. O'Reilly, Phoenix, for appellant.
Lewis, Roca, Scoville, Beauchamp & Linton, by John J. Flynn, Phoenix, for appellee.
This is an appeal from the decision of the Superior Court of Maricopa County, awarding custody, support and alimony to the plaintiff wife. The husband, defendant below, brings this appeal.
The parties were married in 1959, and separated 27 months later. The wife was awarded the custody of minor child, with specified rights of visitation in the husband, and support payments in the amount of $200 per month, and alimony in the amount of $20 per month. The husband appeals the award and the plaintiff wife contests the appeal, and also claims that the court is without jurisdiction in that notice of appeal was not timely filed. Before we consider the merits of the case, we must discuss the questions raised by defendant concerning the timeliness of the appeal.
This matter was tried in Maricopa County by a visiting Judge, the Honorable Gordon Farley, Judge of the Superior Court in and for the County of Santa Cruz. Trial was held without a jury on the 18th and 19th days of January, 1961, both parties being represented by counsel, after which the following events took place:
Decree of Divorce, including findings of fact
and conclusions of law.
Dated 15 February, 1961
Filed 17 February, 1961
Motion to Amend Judgment and the
Alternative Motion for New Trial
Dated 27 February, 1961
Filed 27 February, 1961
Mailed to attorney for
plaintiff 27 February, 1961
Letter from Judge Farley directing Clerk to
enter an order denying the Motion to Amend
and for new trial
Dated 28 April, 1961
Filed 9 May, 1961
Notice of Appeal
Dated 6 July, 1961
Filed 6 July, 1961
Mailed to attorney for
plaintiff 6 July, 1961
Cost Bonds
Dated 5 July, 1961
Filed 6 July, 1961
If the appeal was not timely made, we have no jurisdiction to hear this matter. Harbel Oil Company v. Steele, 80 Ariz. 368, 298 P.2d 789 (1956); Marquez v. Rapid Harvest Company, 89 Ariz. 62, 358 P.2d 168 (1960). In the instant case, the decree of divorce which included findings of fact and conclusions of law was signed by the Superior Court Judge on the 15th of February, 1961, and was filed in the office of the clerk of the Superior Court of Maricopa County on the 17th of February, 1961. The Rules of Civil Procedure 1 provide that a notice of appeal must be filed within 60 days from entry of judgment or within 60 days from entry of certain orders, 73(b), 16 A.R.S. Included among these orders are these denying a motion under Rule 52(b) to amend or make additional findings of fact [73(b)(2)(ii)] or from an order denying a motion for new trial under Rule 59 [73(b)(2)(iv)]. In the instant case, then, both the motion for new trial and the alternative motion to amend or make additional findings of fact having been timely made, the sixty day time limit on appeal would not commence to run until sixty days from the entry or filing of the order denying the said motions, unless there is another rule to the contrary.
In the case of the motion for new trial, however, there is another rule, Rule 59(e), which states as follows:
'* * * Motions for new trial shall be determined within twenty days after rendition of judgment, and if not so determined shall be deemed denied, unless continued by order of the court, or by stipulation.' 59(e), Rules of Civil Procedure. (Emphasis added.)
Rule 59(e) is a rule peculiar to Arizona. It is not part of the Federal Rules of Civil Procedure, and this court has been unable to find any cases from other jurisdictions interpreting this rule. Fortunately, we are not called upon in this decision to determine when a judgment is 'rendered' in a situation such as this, where the judgment is signed out of county by an out of county judge who has heard the case as a visiting judge, and which judgment is later filed in the county in which the trial was held. If we take what we feel to be the more logical view, that the judgment is rendered in a county when the judgment is filed in that county, then the motion for new trial having been made within ten days of the filing or entry was made in time. The California Court of Appeals has discussed this matter as follows:
Gossman v. Gossman, 126 P.2d 178, 185 (1942).
It is not until after a decision has become known to the parties that they can ascertain whether they want a new trial or not and even though the judgment was dated and signed by the Superior Court Judge in Santa Cruz County on 15 February, it was not filed and we feel 'rendered' in Maricopa County until 17 February.
In any event, the motion for new trial not having been ruled upon within the twenty day period from the rendition or entry of judgment is deemed denied, and the sixty day time period would commence to run on that day, which would mean that the notice of appeal based upon the denial of the motion for new trial (under Rule 59(e)) would have to be filed no later than 8 May, 1961. This the defendant failed to do and the appeal based upon the order denying motion for new trial must be dismissed as not having been timely made.
This brings us to the second motion and notice of appeal. The alternative motion was to amend the findings and to make new findings of fact. Under Rule 52(b) this motion must be made ten days after the entry of judgment (as opposed to rendition of judgment) (see also Rule 59(l)) and the motion may be made with a motion for new trial pursuant to Rule 59. This motion having been made ten days after the entry of judgment was timely made.
The argument is made that having joined the motion to amend with the motion for new trial, that 59(e) should also apply to the motion to amend and that therefore the motion to amend not having been ruled upon by the court is deemed denied twenty days after judgment. We do not agree. No cases are cited to support this view nor have we been able to find any. These are alternative motions and we do not feel that by joining the motions that the motion for new trial can restrict the time for determining the motion to amend any more than the motion to amend can extend the time for determining the motion for new trial. The motions were made in the alternative and both must stand or fall on the particular rules applicable to each motion.
The motion to amend having been timely made, we must now look to the order denying that motion. The court, by letter, directed the Clerk of the Maricopa County Superior Court to enter an order denying the motion to amend and for new trial. The letter was dated 27 April, 1961, and said letter was filed and minute entry made on 9 May, 1961. Our Supreme Court has stated as follows:
Harbel Oil Company v. Steele, 81 Ariz. 104, at page 106, 301 P.2d 757, at page 758 (1956). (Emphasis added.)
The entry of the order denying the motion to amend having been made 9 May, 1961, the notice of appeal filed 6 July, 1961, (within 60 days of entry of the order) is good as to the appeal from the order denying defendant's motion to amend judgment, under Rule 52(b), but is not good as to the order denying defendant's motion for new trial, under Rule 59(c).
This brings us to the merits of the case, in which the defendant raises three questions: (1) The custody of the child. (2) The amount of support payments for the child. And, (3) the amount of the alimony awarded. We shall take the question of the custody of the child first.
The child, a boy, was approximately two years old at the time of the divorce decree. The court found, as a fact, that both the plaintiff and defendant were fit and proper persons to have custody of said child. As a conclusion of law, the court stated:
Section 14-846(B), A.R.S. states as follows:
This statute (14-846) is under Guardian and Ward, in title 14 of the Code, 'Decedants' Estates and Fiduciary Relations.' Defendant urges most strenuously that this provision of the Code which was adopted from the California Probate Code, does not necessarily apply to the court in its determination of child...
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Stapley v. Stapley, 1
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