Opinion
D074254
07-14-2020
In re the Marriage of ANGELA and GLENN L. FARR. ANGELA K. FARR, Respondent, v. GLENN L. FARR, Appellant.
Glenn L. Farr, in pro. per., for Appellant. Angela K. Farr, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN170716) APPEAL from an order of the Superior Court of San Diego County, James A. Mangione, Judge. Dismissed. Glenn L. Farr, in pro. per., for Appellant. Angela K. Farr, in pro. per., for Respondent.
I.
INTRODUCTION
Glenn L. Farr, appearing in propria persona, appeals from an order of the trial court addressing issues of child support, spousal support, child and spousal support arrears and requests for attorney fees in connection with family court proceedings arising from the 2014 dissolution of Glenn and Angela Farr's marriage. We conclude that Glenn's appeal is untimely, and that the appeal must therefore be dismissed.
We will refer to the parties by their first names because they share the same last name; we intend no disrespect.
Angela is also appearing in propria persona in this appellate proceeding.
II.
PROCEDURAL BACKGROUND
The current matter on appeal began with Glenn's filing of a request for order on July 24, 2017. Glenn sought modification of a prior child support order and the termination or modification of a prior spousal support order. The court held a hearing on Glenn's request for order on May 11 and 12, 2017. In the court's "FINDINGS AND ORDER AFTER HEARING" the court stated, "The issues presented were as follows: Respondent's Request to Modify Child Support; Respondent's Request to Modify/Terminate Spousal Support; Petitioner's Request for a Determination of Child and Spousal Support Arrears; Petitioner's Application for Attorney Fees under Family Code section 2030; and Petitioner's Application for Attorney's Fees Pursuant to a Motion to Compel granted August 22, 2016." The court's order was filed on November 2, 2017.
The record does not contain copies of those documents identified by the trial court as being addressed that were filed by Angela, who was identified by the court as the "Petitioner."
Glenn filed a notice of appeal on April 27, 2018. In the Notice of Appeal, Glenn identifies the order being appealed from as "the Findings and Order After Hearing entered on November 2, 2017." However, attached to the Notice of Appeal is a copy of an order of the trial court that was filed on November 8, 2017. In the Civil Case Information Statement (CCIS), Glenn indicated that he was appealing from a "Judgment after court trial" that was entered on November 2, 2017. Attached to the CCIS is a copy of a November 2, 2017 order, not a November 8, 2017 order.
On August 13, 2018, this court sent a letter to the parties in which the court noted that while Glenn's Notice of Appeal and CCIS refer to a November 2, 2017 order, and the CCIS includes a copy of a November 2, 2017 order, the Notice of Appeal includes a copy of a November 8, 2017 order. The court indicated that it was unclear to the court from which trial court order Glenn was seeking to appeal. The court further noted that in the CCIS, Glenn indicated that "notice of entry of the November 2, 2017 order was served on the same day, November 2, 2017." A notice of appeal "must be filed within 60 days of service of a notice of entry of the order or a file-stamped copy of the order" pursuant to California Rules of Court, rule 8.104(a)(1)(A)-(B). Glenn's Notice of Appeal, which was filed on April 27, 2018, was filed more than 60 days after the date on which he had stated that notice of entry of the November 2, 2017 order was served on him. For that reason, this court requested that Glenn submit a letter "explaining the precise order that is the subject [of] this appeal and whether the appeal is timely."
In response to the court's letter, Glenn submitted a letter in which he clarified that it was his intention to appeal from the trial court's November 2, 2017 order. Glenn further asserted that his appeal was "timely because no notice of entry of judgment or a copy of the judgment was served by the clerk or by a party under California Rules of Court, rule 8.104." Glenn submitted an amended CCIS in which he stated "NONE" in response to the portion of the form that requested the "[d]ate that notice of entry of judgment or a copy of the judgment was served by the clerk or by a party under California Rules of Court, rule 8.104."
In response to Glenn's letter and amended CCIS, this court entered an order indicating that Glenn's appeal could proceed. However, the court also stated that "[t]he issue of timeliness may be addressed by the parties in their respective appellate briefing and may be subject to further consideration during the pendency of the appeal."
Glenn and Angela filed their respective briefs on appeal. Neither party addressed the issue of the timeliness of Glenn's appeal in their briefing.
In order to ensure that this court has jurisdiction over Glenn's appeal, the court requested from the trial court copies of two documents that, based on the filing system utilized in the trial court, indicated that they may contain proofs of service that were filed in the trial court on November 15, 2017, near the time of entry of the order from which Glenn appeals. On our own motion, we are augmenting the record with a document entitled "PROOF OF SERVICE BY MAIL," filed in the trial court on November 15, 2017, which indicates that Angela's attorney served Glenn with a copy of the trial court's November 2, 2017 "FINDINGS AND ORDER AFTER HEARING" by placing the document in the mail on November 8, 2017. (See Cal. Rules of Court, rule 8.155(a)(1)(A) ["At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [¶] (A) Any document filed or lodged in the case in superior court . . ."].) A file-stamped copy of the November 2, 2017 "FINDINGS AND ORDER AFTER HEARING" is attached to the "PROOF OF SERVICE BY MAIL" document.
III.
DISCUSSION
To appeal from a superior court judgment or appealable order, a party must serve and file a timely notice of appeal. (Cal. Rules of Court, rules 8.100(a)(1), 8.104(a).) "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' " (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) According to rule 8.104, a party has 180 days after a judgment is entered in which to file a notice of appeal (id. at (a)(3)), unless the time is shortened to 60 days in one of six ways. One of the ways that the time may be shortened is if "the party . . . is served by a party with a document entitled 'Notice of Entry' of judgment or a file-endorsed copy of the judgment" (id. at (a)(1)(B), italics added). The 60 days begins on the date of mailing and does not depend upon a party's actual receipt of the document. (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360 [mail service by party]; Code Civ. Proc., § 1013 ["Service is complete at the time of the deposit . . ."].)
Further rule references are to the California Rules of Court.
Rule 8.104(a) provides in full: "Unless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earliest of:
"(1) [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-endorsed copy of the judgment, showing the date either was served;
"(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-endorsed copy of the judgment, accompanied by proof of service; or
"(C) 180 days after entry of judgment."
The "PROOF OF SERVICE BY MAIL" filed on November 15, 2017 in the trial court demonstrates that Angela completed service of the relevant trial court order on Glenn by depositing a file-stamped copy of the November 2, 2017 order in the mail on November 8, 2017. Therefore, the 60-day time period during which Glenn was to have filed a notice of appeal lapsed on January 7, 2018. He did not file a notice of appeal until April 27, 2018. The notice of appeal was thus untimely. As a result, this court has no jurisdiction to consider the merits of Glenn's appeal and the appeal must be dismissed.
The address to which the file-stamped copy of the November 2, 2017 order was sent is the same address that Glenn identified as his address on documents filed in the trial court, as well as the address that Glenn identified as his address on both his initial CCIS and his amended CCIS filed in this court. --------
IV.
DISPOSITION
The appeal is dismissed for lack of jurisdiction.
AARON, J. WE CONCUR: BENKE, Acting P. J. DATO, J.
For purposes of rule 8.104, the term "judgment" also includes an appealable order if the appeal is from an appealable order. (Rule 8.104(e).)