Opinion
No. 77-023
Decided March 10, 1977. Rehearing denied March 31, 1977. Certiorari denied May 23, 1977.
In appeal of dissolution of marriage proceeding, wife moved to dismiss appeal.
Motion to Dismiss Denied
1. APPEAL AND ERROR — Notice of Appeal — Timely Filed — Jurisdictional — Time Tolled — Filing by Any Party — Motion for New Trial — Or — To Amend Judgment. The timely filing of a notice of appeal is mandatory and jurisdictional, and in a civil case, the notice of appeal must be filed within 30 days of the entry of judgment or order appealed from; however, the running of this time is tolled by the filing by any party of either a timely motion to alter or amend judgment or a motion for a new trial.
2. Timely Motion Filed — Amend Original Judgment — After Amended Judgment — Further Motion — Preserve Right to Appeal — Not Required. Where appellant sought no greater or different relief on appeal than that asked of the trial court in his motion to amend directed to the original judgment entered by the trial court, where appellant did not urge any new alleged errors arising from a subsequently entered amended judgment, and where the amended judgment was not the result of a post-judgment hearing involving controverted issues of fact, the appellant, to preserve his right to file a notice of appeal, did not need to file another motion to alter or amend or for a new trial after entry of the amended judgment.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Edward A. Jersin, Davis W. Moore, Jr., for appellee.
George J. Duckworth, for appellant.
Appellee, Ruth M. Foster, moves to dismiss the appeal of appellant, Herbert M. Foster, on the grounds that appellant's notice of appeal was not timely filed. We deny the motion.
This is a domestic relations case in which there were contested issues of fact. The final judgment was entered on April 23, 1976. The husband filed a timely motion to alter or amend judgment or in the alternative, for a new trial. This motion was denied on September 1, 1976, except that the judgment was amended so that the parties were ordered to pay their own attorneys' fees.
On September 10, 1976, the wife filed a timely motion to alter or amend judgment or, in the alternative for a new trial, objecting to the change in the award of attorneys' fees. This motion was set to be heard on January 6, 1977, but on October 21, 1976, the wife withdrew the motion and moved to vacate the scheduled hearing, which motion was immediately granted.
On November 10, 1976, the husband filed his notice of appeal.
[1] The timely filing of a notice of appeal is mandatory and jurisdictional. Chapman v. Miller, 29 Colo. App. 8, 476 P.2d 763. In a civil case, the notice of appeal must be filed within 30 days of the entry of judgment or order appealed from. C.A.R. 4(a). However, the running of this time is tolled by the filing by any party of either a timely motion to alter or amend judgment or a motion for a new trial. C.A.R. 4(a); Valenzuela v. Mercy Hospital, 34 Colo. App. 5, 521 P.2d 1287.
Once a motion to alter or amend a judgment or a motion for new trial has been filed by any party, the time for filing a notice of appeal commences to run anew when the motion to alter or amend judgment is either granted or denied, C.A.R. 4(a)(3), or when the motion for a new trial is denied. C.A.R. 4(a)(4). Here, the filing of the wife's motion served to terminate the running of the time period within which a notice of appeal had to be filed. While the court never ruled on her motion, we hold that, for purposes of computing the time for the husband to file a notice of appeal, the withdrawal of the motion is equivalent to the court's denial of it. Therefore the time for filing a notice of appeal commenced to run anew not earlier than October 21, 1976, the date upon which the wife withdrew her motion. Since the husband filed his notice of appeal within 30 days of this date, the notice was timely.
[2] An additional procedural question is raised under the facts of this case: Was it necessary for the husband to have filed a motion to alter or amend or for a new trial directed to the amended judgment entered September 1, 1976? We hold that, under the facts here, the filing of such a motion was not necessary in order to protect his right of appeal. His motion directed to the original judgment entered April 23, 1976, was denied except for the modification concerning attorneys' fees.
The purpose of such motion is to give the trial court an opportunity to reconsider the issues raised by the movant, Minshall v. Pettit, 151 Colo. 501, 379 P.2d 394, and to define and limit those issues which may be raised in an appeal. Furer v. Allied Steel Co., 174 Colo. 171, 483 P.2d 212.
Where an appellant, as in this case, seeks no greater or different relief on appeal than that asked of the trial court in the motion directed to the original judgment, where appellant is not urging any new alleged errors arising from the amended judgment, and where the amended judgment is not the result of a post-judgment hearing involving controverted issues of fact, see C.R.C.P. 59(h), the appellant need not file another motion to alter or amend or for a new trial after entry of the amended judgment as a prerequisite to the filing of his notice of appeal.
The motion to dismiss the appeal is denied.
JUDGE PIERCE and JUDGE KELLY concur.