Opinion
No. 02-1277
February 12, 2003.
APPEAL FROM THE DISTRICT COURT, PARISH OF CALCASIEU, NO. 2001-628, HONORABLE LILYN A. CUTRER, DISTRICT JUDGE
STEPANIE L. COCHRAN, ATTORNEY AT LAW, STATE OF LOUISIANA, DEPT OF SOCIAL SERVICES, LAKE CHARLES, LA, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana, Dept. of Social Services
ELIZABETH SIMON BERNARD, PROPER PERSON, CALCASIEU PARISH WOMEN'S CORRECTIONAL SERVICE, LAKE CHARLES, LA, DEFENDANT/APPELLANT.
Court composed of Ulysses Gene Thibodeaux, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.
Plaintiff/Appellee State of Louisiana, Department of Social Services has filed an Exception of Prescription alleging that Defendant/Appellant's Motion for Devolutive Appeal was not timely filed. Since the pleading should more properly be styled a Motion to Dismiss and we will treat it as such. For the reasons given below, we dismiss the appeal.
Plaintiff/Appellee instituted child support proceedings against defendant/appellant. On March 22, 2002, a hearing was held in which it appeared that defendant/appellant represented herself. The Hearing Officer recommended that defendant/appellant be ordered to pay child support of $100.00 per month effective February 1, 2001. The recommendation also advised that either party could request a hearing before the judge by filing the appropriate motion with the clerk of court by April 6, 2002.
On April 9, 2002, no motion for a judge hearing having been timely requested, the trial court signed a judgment making the Hearing Officer's recommendation the judgment of the court. On May 22, 2002, notice of judgment was served on defendant/appellant personally at the Calcasieu Women's Correction Service.
On June 14, 2002, defendant/appellant filed a writ application (02-744) which was denied on August 7, 2002, on the grounds that there was an adequate remedy by appeal from the judgment of child support. On August 27, 2002, defendant/appellant filed a Motion and Order for Devolutive Appeal which was signed by the trial court on September 30, 2002.
An appeal from a judgment awarding support of a person can be taken only within the delay provided in Article 3942. La. Code Civ.P. art 3943.
La. Code Civ.P. art. 3942 provides that an appeal can be taken only within thirty days from the applicable date provided in Article 2087(A)(1)-(3).
La. Code Civ.P. art. 2087 provides that the delay for filing an appeal begins to run from:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
La. Code Civ.P. art. 1974 provides that the delay for applying for a new trial is seven days exclusive of holidays and that the delay begins to run from the day after the clerk has mailed, or the sheriff has served, the notice of judgment.
In the instant case, notice of judgment was served on defendant/appellant on May 22, 2002. Defendant/Appellant did not apply for a new trial. The delay for applying for a new trial expired on May 31, 2002. Defendant/appellant then had until July 1, 2002 to file her appeal.
Instead, defendant/appellant filed an application for supervisory writs on June 14, 2002 which was denied on August 7, 2002. Unfortunately for defendant/appellant, the filing of an application for supervisory writs does not suspend the running of time for appeal. Jones v. Jones, 393 So.2d 281(La.App. 1 Cir. 1980), Guillory v. Hartford Insurance Company, 383 So.2d 144 (La.App. 3 Cir. 1980).
Defendant/Appellant did not file her motion for appeal until August 27, 2002, after the delay for appeals had run.
Because defendant's appeal was not timely perfected, this court has no jurisdiction. Accordingly, defendant's appeal is dismissed.
APPEAL DISMISSED .