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Hunter v. Hunter

Court of Appeals of Texas, First District

March 27, 2018

DEBORAH B. HUNTER, Appellant
v.
ERIC M. HUNTER, Appellee

          On Appeal from the County Court at Law No. 3 Williamson County, Texas Trial Court Case No. 15-2351-FC3

          Panel consists of Justices Jennings, Keyes, and Higley.

          MEMORANDUM OPINION

          PER CURIAM

         Appellant, Deborah B. Hunter, proceeding pro se, attempts to appeal from the trial court's final decree of divorce, signed on October 20, 2015, by filing an "Order Requesting Motion for Appeal" on December 6, 2017, which we construe as a notice of restricted appeal.[1] In response to this Court's notice, Hunter also filed a pro se motion for an extension of time to file a notice of restricted appeal. We dismiss this appeal for want of jurisdiction and dismiss the motion as moot.

         Generally, a notice of appeal is due within thirty days after the final judgment is signed. See Tex. R. App. P. 26.1. The deadline to file a notice of appeal is extended to ninety days after the date the judgment is signed if, within thirty days after the judgment is signed, any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. See id. 26.1(a); Tex.R.Civ.P. 329b(a), (g). The time to file a notice of appeal may also be extended if, within fifteen days after the deadline to file the notice of appeal, a party properly files a motion for extension. See Tex. R. App. P. 10.5(b), 26.3.

         The Clerk of this Court categorized this appeal as a restricted appeal. However, to qualify for a restricted appeal, an appellant must establish that: (1) she filed the notice of restricted appeal within six months after the judgment or order appealed from was signed; (2) she was a party to the underlying suit; (3) she did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or notice of appeal; (4) she did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of; and (5) the trial court erred and the error is apparent from the face of the record. See Bassie v. Citibank (S. Dakota) N.A., 01-05-00943-CV, 2006 WL 181514, at *1 (Tex. App.- Houston [1st Dist.] Jan. 26, 2006, no pet.) (per curiam) (mem. op.) (citing, inter alia, Tex.R.App.P. 30, 26.1(c)).

         Here, Hunter's notice of appeal was filed on December 6, 2017, more than one year and seven months past the restricted-appeal deadline of April 20, 2016, six months after the October 20, 2015 divorce decree. See Tex. R. App. P. 26.1(c), 30. Thus, to the extent that Hunter claims that this appeal qualifies as a restricted appeal, she failed to comply with the first requirement because she did not timely file a notice of restricted appeal within six months of the October 20, 2015 final decree of divorce, or by April 20, 2016. Without a timely filed notice of appeal, this Court lacks jurisdiction over this appeal. See id. 25.1, 26.1(c).

         On March 8, 2018, the Clerk of this Court notified Hunter that this appeal was subject to dismissal for want of jurisdiction unless she timely responded and showed how this Court had jurisdiction. See Tex. R. App. P. 42.3(a), (c). On March 12, 2018, Hunter filed a motion for an extension of time, but she seeks an extension of time to file a notice of restricted appeal from April 18, 2016, until January 31, 2018, because she contends that she was not at the divorce hearing and did not receive notice of the October 20, 2015 divorce decree until August 1, 2017.

         If a party claims, as Hunter did in her extension and notice of appeal, that she did not receive notice or acquire actual knowledge that a judgment was signed within 20 days of the signing, the date the filing period discussed above commences can be changed from the date the judgment is signed to the date the party first received notice or acquired actual knowledge of the signing. See Tex. R. App. P. 4.2(a)(1); Tex.R.Civ.P. 306a(4). However, to invoke one of these rules, the party must file a sworn motion, provide notice to the other parties, and prove to the trial court the date that notice was received or acquired. Tex.R.App.P. 4.2(b), (c); Tex.R.Civ.P. 306a(5); see In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding). The filing periods may not, however, begin more than 90 days after the date of signing; therefore, the party must have received notice or acquired actual knowledge of the signing within 90 days of the date the judgment or order is signed for these rules to apply. See Lynd, 195 S.W.3d at 683, 685. The clerk's record does not indicate that any sworn motion was filed by Hunter under Rule 306a in the trial court within 90 days of the October 20, 2015 final decree of divorce. Thus, Hunter's motion was inadequate to show how this Court has jurisdiction over her untimely restricted appeal. See Tex. R. App. P. 26.1(c).

         Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a); 43.2(f). We dismiss as moot Hunter's motion for an extension of time.

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Notes:

[1] The Texas Supreme Court transferred this appeal from the Third Court of Appeals to this Court pursuant to its docket equalization powers. See Tex. Gov't ...


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