Turner v. Turner, 92-488
| Decision Date | 04 August 1993 |
| Docket Number | No. 92-488,92-488 |
| Citation | 641 A.2d 342,160 Vt. 646 |
| Court | Vermont Supreme Court |
| Parties | Maxine F. TURNER, v. Jonathan B. TURNER. |
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
Defendant husband appeals from a divorce order. Because the appeal was untimely filed, we do not have jurisdiction.
Final judgment was entered on July 28, 1992. On August 18, 1992, twenty-one days after the final judgment, defendant filed a motion to amend the judgment, which was untimely. See V.R.C.P. 59(e) (). On September 2, 1992, the court denied the motion because it was untimely filed. The next day, defendant sought an enlargement of time to file the motion to amend under V.R.C.P. 6(b)(2). On September 4, 1992, the court denied defendant's motion for enlargement of time. Defendant appealed to this Court on September 17, 1992, fifty-one days after the entry of the judgment, which was an untimely appeal. See V.R.A.P. 4 (). The time for filing the notice of appeal was not tolled by defendant's untimely motion to amend. See V.R.A.P. 4 ().
In its September 4 denial of the V.R.C.P. 6(b) motion to enlarge time, the court granted defendant additional time to appeal. Under V.R.A.P. 4, a court may extend time for filing notice of appeal "for excusable neglect, upon motion and notice, if request therefore is made within 30 days after the expiration of the period" for filing an appeal. Defendant, however, never requested an extension of time to file an appeal; therefore, the court had no authority to grant such an extension. See In re Stevens, 149 Vt. 199, 200, 542 A.2d 256, 256-57 (1987) (). The court could not retroactively treat defendant's Rule 6(b)(2) motion as a Rule 4 motion for an extension of time to file notice of appeal because this did not allow the other party the notice required by Rule 4. Cf. Campos v. LeFevre, 825 F.2d 671, 673 (2d Cir.1987) (); ...
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