Opinion
No. 5
July 14, 1989, Filed
JAMES D. GASS, Jackson, Attorney for Petitioner/Appellant.
A. RUSSELL LARSON, Jackson, Attorney for Respondent/Appellee
Tomlin, P.J., W.S.
This is a post-divorce child custody case from the Chancery Court of Madison County. Mother appeals from the decree of the court below changing joint custody of the parties' minor child to Father alone. Mother raises five issues by this appeal. We do not reach these issues for the reason that the decree appealed from is not a final decree from which an appeal can be taken; a final decree having been previously entered and not appealed from. As a result, this appeal is not properly before us and we dismiss.
The record reflects that Mother and Father were divorced in 1984. As part of the settlement entered into by the parties it was agreed that they would have joint custody of their minor child, then age three, but that the child was to reside principally with Mother. Three years later Mother received a job offer in another state at a substantially higher salary. She petitioned the court for permission to remove the child from the jurisdiction and for sole custody, or in the alternative, the maintenance of joint custody but with the right to establish the child's permanent residence in Missouri. At about the same time Father filed a petition in the same court alleging changed circumstances and asking for sole custody of the parties' child. The two proceedings were consolidated for hearing and disposition.
At a hearing held in January, 1988, the chancellor granted Mother the right to move with the minor child to Missouri, but retained joint custody. At the same time he established new visitation rights for Father. The order, not entered until June 6, 1988, also provided that at the end of that school year when the child returned to Madison County to visit father, a hearing would be held to determine "the suitability of this custodial arrangement . . . ." That hearing was held on August 8, 1988 in the Madison County Chancery Court. Following the hearing, on August 23, 1988, the chancellor entered an order awarding sole custody to Father, providing for reasonable visitation with the child for Mother.
On August 24, 1988, Mother's new counsel of record filed a motion entitled "Motion for Written Findings and Conclusions," which reads in part as follows: "Pursuant to . . . Rule 52.01, Tennessee Rules of Civil Procedure, Petitioner respectfully requests written findings of fact and conclusions of law with respect to the Court's decision of August 9, 1988, changing Nathan Scott Brewer's primary residence from his Mother . . . ." On December 8, 1988, the chancellor filed "Findings of Fact and Conclusions of Law." On the same date the court filed a new order in substantially the same form and substance as the court's prior order filed August 23, 1988, noting, however, that Mother's move with the child accompanied by a change in the child's environment constituted a substantial change of circumstances to warrant change of custody. Mother filed a Notice of Appeal from the order entered December 8, 1988.
The order of the Chancery Court of Madison County entered August 23, 1988 contained all of the elements of a final order or judgment. Rule 3(a) T.R.A.P. requires that a notice of appeal be filed from a "final judgment entered by a trial court . . . ." Rule 4(a) T.R.A.P. provides that the notice of appeal required by Rule 3 is to be filed with the clerk of the trial court within thirty days after date of the entry of the judgment appealed from.
Rule 4(b) T.R.A.P. provides that if a motion under certain designated provisions of the Tennessee Rules of Civil Procedure is timely filed, then "the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion." Again, it should be noted that the Rules of Civil Procedure pursuant to which such motions might be made in order to delay the filing of a notice of appeal are specifically designated by number. The rule does not provide an exception for motions under 52.01. Only one of the named exceptions could possibly be applicable: "(2) under Rule 52.02 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted."
In the case before us, the record is clear that (a) no findings of fact or conclusions of law appeared in the court's order of August 23, 1988; and (b) the motion requesting the court to make findings of fact and conclusions of law was filed subsequent to the entry of the court's order.
Rule 52.01, T.R.C.P., clearly provides that "upon request made by any party prior to the entry of judgment, the court shall find the facts specially and shall state separately its conclusions of law . . . . " [emphasis added]
In addition, Rule 52.02 provides in part: "Upon motion of a party made not later than 30 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly." [emphasis added] Implicit in Rule 52.02 is the obvious fact that in the judgment heretofore entered the court had made findings of fact which were being challenged by the Rule 52.02 motion. The obvious conclusion is that Rule 52.02 does not apply to the case at bar for no findings of fact were ever made by the trial court in the first place. Therefore, Mother's motion cannot be considered as being in substance a motion under Rule 52.02. In our opinion, when thirty days had elapsed following the entry of the order of August 23, 1988, that order became a final order and proceedings in the trial court thereafter became a nullity.
Mother's notice of appeal was not filed until December 20, 1988. The thirty-day time rule in Rule 4 T.R.A.P. is mandatory and jurisdictional in civil cases. The Rules of Appellate Procedure specifically provide that this Court can neither waive nor extend this time period. (See T.R.A.P. 2 and T.R.A.P. 21(b)). Thus, failure to timely file a notice of appeal is a procedural omission directly affecting the validity of an appeal. Jefferson v. Pneumo Services Corp., 699 S.W.2d 181, 184 (Tenn. App. 1985).
For the reasons stated, this appeal is dismissed. Costs in this cause on appeal are taxed to Mother, for which execution may issue if necessary.