Opinion
No. 73-807
Decided June 19, 1974.
Appeal — Notice not timely filed, when — App. R. 4(A) — Running of time not suspended, when — Provisions of Rule exclusive.
APPEAL from the Court of Appeals for Hamilton County.
Appellant filed a motion in the Court of Common Pleas of Hamilton County, Division of Domestic Relations, seeking an order finding appellee in contempt of court for his failure to make the support payments required by a separation agreement incorporated into a decree of divorce. A hearing was held on the motion before a referee, and, on February 21, 1973, a judgment entry, incorporating the referee's findings of fact and conclusions of law, was journalized by the court.
Appellant filed a motion for reconsideration of the referee's findings, subsequent to which a judge of the Division of Domestic Relations scheduled a hearing for March 7, 1973. Counsel for appellee advised the court that he could not appear on that date, and the court accordingly rescheduled the hearing for March 26, 1973. The hearing was held at that time, with counsel for both parties presenting argument. The court subsequently advised in a written opinion that it "approved and confirmed" the findings of the referee, and an entry to that effect was journalized on April 10, 1973.
On May 2, 1973, appellant filed in the Court of Appeals a notice of appeal from that judgment entry. Appellee filed a motion to dismiss on the ground that the notice of appeal was not timely filed pursuant to App. R. 4(A).
The Court of Appeals granted appellee's motion to dismiss the appeal, and the cause is now before this court pursuant to allowance of a motion to certify the record.
Aronoff, Rosen Lerner Co. L.P.A., and Mr. William J. Ennis, for appellee.
Messrs. Cors, Hair Hartsock, Mr. Louis J. Schneider, Jr., and Mr. James R. Marlow, for appellant.
Appellant contends that the 30-day period within which she could appeal the court's entry of February 21, 1973, pursuant to App. R. 4(A), was suspended by the subsequent reconsideration given by the court to the referee's report. She further asserts that that reconsideration was the equivalent of a new trial, and hence that the journal entry of April 10, 1973, from which she purports to appeal, was itself a final appealable order.
We are unable to agree with appellant. In addition to establishing the 30-day period for appeal, App. R. 4(A) provides the exclusive means by which the running of that time may be suspended. The operation of the rule may be tolled by either the filing of a motion for judgment notwithstanding the verdict, pursuant to Civ. R. 50(B), or the filing of a motion for a new trial under Civ. R. 59. Appellant's "motion for reconsideration" manifestly is neither.
If anything, it is a motion for relief from judgment pursuant to Civ. R. 60(B). In specific terms, Rule 60(B) provides: "A motion [filed hereunder] * * * does not affect the finalty of a judgment or suspend its operation." Thus, a Civ. R. 60(B) motion, by whatever name, does not toll the time in which an appeal can be filed.
Appellant's attempt to equate that motion with a motion for a new trial is of no avail, nor is her argument that the de novo nature of the court's reconsideration transformed the motion which triggered it into a motion for a new trial. App. R. 4(A) is precise in its requirements, and appellant's possible reliance to her detriment upon an informal local practice, although unfortunate, cannot alter the operation of that Rule. Her failure to conform to App. R. 4(A) rendered null the "reconsideration" and the resulting journal entry of April 10, 1973, and the Court of Appeals properly granted the motion to dismiss the appeal.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.