Labansky v. Labansky

• Decision Date: 24 May 1988
• Docket Number: No. 10495,10495
• Parties: Shirley T. LABANSKY, Petitioner-Appellee, v. John L. LABANSKY, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 1007

759 P.2d 1007

107 N.M. 425

Shirley T. LABANSKY, Petitioner-Appellee, v. John L. LABANSKY, Respondent-Appellant.

No. 10495.

Court of Appeals of New Mexico.

May 24, 1988.

Certiorari Denied June 24, 1988.

[107 NM 425] Betty Read Law Offices of Betty Read, Albuquerque, for petitioner-appellee.

Bruce P. Moore, Albuquerque, for respondent-appellant.

OPINION

DONNELLY, Chief Judge.

In this domestic relations case, husband appeals from the district court's denial of his motion for reconsideration or for a new trial. Husband also seeks to appeal from the trial court's decree dissolving the marriage of the parties and the underlying judgment. Our calendar notice, filed April 20, 1988, proposed summary dismissal of husband's appeal, since the denial of a motion for a new trial is not an appealable order, and because husband's notice of appeal was not timely filed after entry of the underlying judgment. Husband responded to the calendar notice with a memorandum in opposition, filed May 4, 1988, one day late. See SCRA 1986, 12-210(E)(3); & 12-308. Nonetheless, we consider the contentions husband has advanced therein. See Olguin v. State, 90 N.M. 303, 563 P.2d 97 (1977). We are not persuaded by the argument and authority submitted and dismiss the appeal.

The judgment and final decree of dissolution of marriage was filed in this case on December 28, 1987. Husband's motion for reconsideration or in the alternative for a new trial was filed January 6, 1988. A hearing was held on that motion on January 28, 1988. Husband's motion was thereafter denied by operation of law on February 5, 1988, the district court having failed to take action on it within the requisite period of time. See SCRA 1986, 12-201(E)(5). Husband's notice of appeal was subsequently filed on February 8, 1988. No motion for an extension of time in which to file the appeal appears in the record of proceedings, and no order of the district court granting an extension of time to file the appeal was entered. An extension of time to file an appeal does not arise by implication from the filing of a motion for a new trial or a motion for reconsideration; an extension of time for the filing of an appeal must be specifically requested and granted. State ex rel. HSD v. Jasso, 26 SBB 939 (Ct.App.1987), citing Rule 12-201(E).

Husband's notice of appeal, filed February 8, 1988, was not timely with respect to the date of entry of the underlying judgment. See R. 12-201(A). As stated in this court's calendar notice, the denial of husband's motion for reconsideration or in the alternative for a new trial is not appealable. Public Serv. Co. v. First Judicial Dist. Court, 65 N.M. 185, 334 P.2d 713 (1959); Harrison v. ICX, Illinois-California Express, Inc., 98 N.M. 247, 647 P.2d 880 (Ct.App.1982). The rule governing the vesting of jurisdiction in this court is that failure to file a timely notice of appeal is jurisdictionally fatal. See Rule 12-201(A); Seaboard Fire & Marine Ins. Co. v. Kurth, 96 N.M. 631, 633 P.2d 1229 (Ct.App.1980); see also Chavez-Rey v. Miller, 99 N.M. 377, 658 P.2d 452 (Ct.App.1982). Moreover, Rule 12-201(D), as amended by the New Mexico Supreme Court in 1986, expressly disallows the automatic extension of the time in which to file an appeal by virtue of the filing of post-trial motions.

Husband's memorandum in opposition to our calendar notice states that the effect of our proposed application of the timeliness rule would deprive him of his absolute right to an appeal, or to leave him with the "Hobson's choice" of choosing to appeal or to pursue his right to pursue a post-trial motion in the district court. We disagree. Husband had the opportunity to request that the district court rule on his motion for reconsideration within the time limit for the taking of an appeal from the underlying judgment. Alternatively, husband had the right to request that the district court enter an order extending the time in which to file the notice of appeal. See R. 12-201(E)(1) and (2). The record before us does not indicate that either of those avenues was pursued. Even constitutional rights may be waived. See State v. Herring, 77 N.M. 232, 421 P.2d 767 (1966), cert. denied, 388 U.S. 923, 87 S.Ct. 2126, 18 L.Ed.2d 1372 (1967); State v. Duran, 105 N.M. 231, 731 P.2d 374 (Ct.App.1986). In this case, husband waived his right to pursue an appeal by virtue of his failure to seek an extension of time in which to do so, and his failure to file his notice of appeal in a timely manner.

The New Mexico Supreme Court is vested with the authority to promulgate rules of pleading, practice, and procedure. State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947). The supreme court adopted revised appellate procedural rules on September 16, 1986, governing appeals brought after January 1, 1987. See SCRA 1986, Judicial Pamphlet 12, at 1. We do not consider husband's arguments concerning rulings of the supreme court antedating the effective date of the new rules, as those cases were decided under earlier versions of the rules. See Montgomery Ward v. Larragoite, 81 N.M. 383, 467 P.2d 399 (1970); Starnes v. Starnes, 72 N.M. 142, 381 P.2d 423 (1963).

The revised rules include the provision that the filing of post-trial motions, including motions for a new trial, do not extend the time limits for the filing of the notice of appeal. Husband argues that the rule is silent with respect to the tolling of the time in which to bring an appeal, and that Rule 12-201(E)(5) "implicitly recognizes" that the denial by operation of law of a post-trial motion for new trial attacking the judgment or findings is a separate appealable event. We do not address husband's contention concerning the tolling of time for the taking of an appeal, as he fails to cite any authority in support of that contention. See State v. Casteneda, 97 N.M. 670, 642 P.2d 1129 (Ct.App.1982). Instead we rely on State ex rel. HSD v. Jasso, wherein this court held that an extension of time in which to appeal cannot arise by implication. Thus, we hold that husband's notice of appeal from the underlying judgment was not timely filed and the appeal from that judgment must be dismissed.

Regarding the denial by operation of law of his motion for reconsideration or in the alternative for a new trial, husband admits that this court is without authority to overrule precedent established by our supreme court. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). Our calendar notice relies on ...