Opinion
No. 3-898 / 03-0504.
Filed January 14, 2004.
Appeal from the Iowa District Court for Scott County, James Weaver, District Associate Judge.
A maternal grandmother appeals from the juvenile court's permanency order which transferred custody of her minor grandson from her to his biological father. APPEAL DISMISSED.
Patrick Kelly, Bettendorf, for appellant-grandmother.
John Molyneaux, Davenport, for appellee-father.
Lucy Valainis, Davenport, for appellee-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee.
Carrie Coyle, Davenport, for minor child.
Considered by Huitink, P.J., and Zimmer and Miller, J.J.
Maternal grandmother, Sara, appeals from the juvenile court's permanency order in a child in need of assistance (CINA) case which transferred custody of her minor grandson, Alex, from her to his biological father, Alan. She contends the court erred in changing custody without sufficient evidence to do so and that changing custody was not in the best interest of the child. We dismiss the appeal for lack of appellate jurisdiction.
Alex was born May 2, 2002. He was removed from his mother's care on May 22, 2002 and placed with his maternal grandmother, Sara. The juvenile court adjudicated Alex a CINA on July 18, 2002 under Iowa Code sections 232.2(6)(c)(2), 232.2(6)(n), and 232.2(6)(o) (2001), continued his placement with Sara, and granted her limited guardianship of Alex.
A dispositional review/permanency hearing was held on January 6, 2003. The court filed a permanency order the same day and ordered custody of Alex be transferred from Sara to Alan through gradually increased visitation, with custody to be transferred effective February 13, 2003. The court further ordered that the CINA case be dismissed and terminated on February 15, 2003.
On January 17, 2003, Sara filed a "Motion for Expanded Findings/Re-hearing." In it she referred to the predecessor to Iowa Rule of Civil Procedure 1.904(2) (rule 179(b)), requested that the January 6 ruling be set aside, and requested that a re-hearing be held. The juvenile court overruled the motion on February 17, 2003. Sara filed a notice of appeal on March 11, 2003.
Sara contends the court erred in transferring custody of Alex from her to Alan because there was insufficient evidence to do so and it was not in Alex's best interest. Sara's March 11 notice of appeal was filed within thirty days of the court's February 17 ruling on her motion, but approximately sixty-four days after the January 6 permanency order transferring custody of Alex to his father. The State contends Sara's appeal should be dismissed for lack of appellate court jurisdiction. It argues the notice of appeal was untimely because Sara did not file it within the thirty-day time period allowed for appeal after the entry of a final order and her motion did not toll the time for appeal.
Iowa Rule of Appellate Procedure 6.5(1) prescribes the time for appeal. In relevant part, and prior to a July 1, 2003 amendment which does not apply to the appeal in this case, that rule provided:
[A]ppeals to the supreme court must be taken within, and not after, 30 days from the entry of the order, judgment, or decree, unless a motion for new trial or judgment notwithstanding the verdict as provided in Iowa R. Civ. P. 1.1007, or a motion as provided in Iowa R. Civ. P. 1.904(2), is filed, and then within 30 days after the entry of the ruling on such motion. . . .
This rule is mandatory and jurisdictional, requiring us to dismiss a case not meeting these deadlines even if the parties do not raise the issue. Explore Info. Servs. v. Iowa Court Info. Sys., 636 N.W.2d 50, 54 (Iowa 2001). Because Sara did not file her appeal within thirty days of the permanency order, we have jurisdiction over this appeal only if her motion was timely filed and was one which tolled the running of the time for appeal.
Clearly, Sara's motion was not a motion for judgment notwithstanding the verdict. It can be read as a motion provided in rule of civil procedure 1.904(2), as it refers to the predecessor of rule 1.904(2) and at hearing Sara's counsel stated that it was a motion under such rule. It might also arguably be read as a motion for new trial, as it requested the order be "set aside" and a "re-hearing" be held. Accordingly, for purposes of this appeal we will regard the motion as a rule 1.904(2) motion or a motion for new trial. The question then is whether the motion extended the deadline for appeal. For the following reasons we do not believe the motion was sufficient to do so.
Rule 1.904(2) provides in relevant part
On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted.
A motion for new trial must be filed within ten days after filing of the verdict or decision with the clerk. Iowa R. Civ. P. 1.1007. The juvenile court's permanency order was filed Monday, January 6, 2003, and Sara did not file her motion until eleven days later on Friday, January 17, 2003. Therefore, her motion was not timely filed. An untimely rule 1.904(2) (formerly rule 179(b)) motion or motion for new trial will not toll the running of thirty-day period within which an appeal must be taken, Sara's motion was not timely filed and it thus did not extend the time for appeal, and because Sara's notice of appeal was filed later than thirty days after entry of judgment we are without jurisdiction to hear her appeal. See Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 471 (Iowa 1978) (rule 179(b) motion); Milks v. Iowa Oto-Head Neck Specialists, 579 N.W.2d 801, 803 (Iowa 1994) (motion for new trial).
No circumstances existed which would have extended the time for filing the motion under the provisions of Iowa Code section 4.1(34).
However, to the extent Sara's motion was intended as a motion pursuant to rule 1.904(2), we need not rest our resolution of this appeal solely on the fact the motion was untimely. Even if the motion was timely filed, the form of relief requested would not toll the time for appeal. With exceptions not applicable here, a rule 1.904(2) motion "lies only when addressed to a ruling made upon trial of an issue of fact without a jury." Fed. Am. Int'l Inc. v. Om Namah Shiva, Inc., 657 N.W.2d 481, 483 (Iowa 2003) (citation omitted). Not every "motion to reconsider" will extend the time for appeal. Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998); Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985). "A motion relying on rule [1.904(2)], but filed for an improper purpose, will not toll the thirty-day period for appeal under" our rules of appellate procedure. Bellach, 573 N.W.2d at 904-05. "Motions to reconsider that are not in substance motions for new trial or rule [1.904(2)] motions will not extend the time for appeal." Beck, 376 N.W.2d at 596.
Sara's motion alleged that the court would not have reached the decision it did concerning Alex's custody if she had presented further evidence on the issue, and asked the court to allow a re-hearing. However, rule 1.904(2) does not provide for such relief. Instead, it allows a party to request that the court's findings and conclusions be enlarged or amended and the judgment or decree modified accordingly. Sara's motion did not request such relief. It amounted to little more than an attempt to rehash issues previously raised and decided adversely to Sara by the court. See Bellach, 573 N.W.2d at 905. Thus, to the extent Sara's motion was intended as a rule 1.904(2) motion it was not sufficient to extend the time for appeal even if it was timely filed.