Marriage of Gardella, In re, C--724

Citation547 P.2d 928
Decision Date29 March 1976
Docket NumberNo. C--724,C--724
PartiesIn re the MARRIAGE OF Judith Ousley GARDELLA, Petitioner, and John Raymond Gardella, Respondent.
CourtSupreme Court of Colorado

Irvin L. Mason, Durango, for petitioner.

Pendleton, Sabian, Guthery & Lewis, P.C., D. Craig, Lewis, Denver, for respondent.

PRINGLE, Chief Justice.

This is an action for dissolution of marriage and for a determination of the related issues of custody of children, child support, maintenance, property division, and attorney's fees. The petitioner, Judith Gardella, appealed portions of the trial court's decree to the Court of Appeals. The Court of Appeals dismissed the appeal. In re the marriage of Gardella and Gardella, Colo.App., 536 P.2d 862 (1975). We granted certiorari and now reverse and remand with directions.

On May 14 and 15, 1974, trial was held on all the issues raised by John Gardella's (respondent) Petition for Dissolution and the petitioner's Response. The judge indicated that he would take the issues under advisement.

The clerk of the trial court made a notation dated May 15, 1974, on the court's judgment docket which indicates that a decree of dissolution of marriage was entered that day. However, the written decree of dissolution was not filed in the district court until May 28, 1974. As part of the decree, the trial judge made written findings and orders determining the issues of custody of children, child support, maintenance, property division, and attorney's fees. Despite the fact that these findings and orders were not filed until May 28, 1974, they were dated as of May 15, 1974. No entry was ever made on the trial court's judgment docket relating to the issues of custody, child support, maintenance, property division and attorney's fees.

On June 25, 1974, petitioner filed a motion for a new trial in the trial court. In her motion, petitioner stated that the final judgment of the trial court had not been entered on the judgment docket and stated that she was filing her motion on the assumption that entry of judgment would be made upon the court's receipt of the motion.

On July 22, 1974, the trial court ordered the motion for a new trial stricken from the record on the ground that it had not been timely filed in compliance with C.R.C.P. 59(b). The Court of Appeals agreed with the trial court and dismissed petitioner's appeal since the jurisdictionally required motion for a new trial had not been timely filed.

I.

The Rules for Civil Procedure provide, and we have repeatedly held, that the timely filing of a motion for a new trial is a jurisdictional prerequisite to the taking of an appeal. C.R.C.P. 59(f); See, e.g., Reuckhaus v. Snow, 167 Colo. 51, 445 P.2d 577 (1968). The purpose of a motion for a new trial is to enable the trial court to correct any errors it might have made in the course of the proceedings. Minshall v. Pettit, 151 Colo. 501, 379 P.2d 394 (1963).

C.R.C.P. 59(b) provides that '(a) motion for a new trial shall be filed not later than ten days after the entry of the judgment, . . .' In order to fairly and accurately determine when the ten day period of Rule 59(b) begins, it is essential to establish a date certain. C.R.C.P. 58(a)(3) provides that 'the notation of a judgment in the register of actions as provided by Rule 79(a) constitutes the entry of judgment; and the judgment is not effective before such entry.'

Read together, the Rules provide that a motion for a new trial must be filed not later than ten days following the notation of judgment in the trial court's register of actions (or judgment docket.) City and County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971).

II.

The trial court's action in the instant case of relating back the matters decided on May 28 to the May 15 entry on the judgment docket had the effect of extinguishing the petitioner's right to appeal from the determinations made on May 28. Under these circumstances, the ten day period of C.R.C.P. 59(b) expired before the remaining issues in the case had even been determined by the trial court. This result contravenes the right of...

To continue reading

Request your trial
9 cases
  • Marks v. District Court In and For Seventeenth Judicial Dist. of State, 81SA431
    • United States
    • Colorado Supreme Court
    • 8 Marzo 1982
    ...the first entry of verdict form in March of 1980 would have effectively cut off the defendant's right to appeal. See, In re Gardella, 190 Colo. 402, 547 P.2d 928 (1976). This we do not ...
  • People in Interest of A. M. D.
    • United States
    • Colorado Supreme Court
    • 19 Julio 1982
    ...the intendment of C.R.C.P. 58(a)(2). See, e.g., Poor v. District Court, 190 Colo. 433, 549 P.2d 756 (1976); In re Marriage of Gardella, 190 Colo. 402, 547 P.2d 928 (1976); Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo.App. 252, 539 P.2d 137 (1975). Since D. D.'s motion for a new trial......
  • In re Estate of Becker
    • United States
    • Colorado Court of Appeals
    • 7 Diciembre 2000
    ...new trial. Similarly, nunc pro tunc orders have been held ineffective when determining the timing of appeals. See In re Marriage of Gardella, 190 Colo. 402, 547 P.2d 928 (1976) (time for appeal of a nunc pro tunc order begins from date that order actually entered); Joslin Dry Goods Co. v. V......
  • People v. Moore
    • United States
    • Colorado Supreme Court
    • 11 Abril 1977
    ...543 P.2d 538 (1975); Austin v. College/University Ins. Co. of America, 30 Colo.App. 502, 495 P.2d 1162 (1972); See In re Marriage of Gardella, Colo., 547 P.2d 928 (1976). As we have previously noted, however, the considerations governing determination of the effect of time limitations are n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT