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Brown v. Brown

Court of Appeals of Idaho

October 31, 2014

HEATHER G. BROWN, Plaintiff-Respondent,
v.
MICHAEL L. BROWN, Defendant-Appellant.

2014 Opinion No. 92

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge; Hon. Scott L. Wayman, Magistrate.

Judgment dismissing appeal, vacated, and case remanded.

Madsen Law Offices, P.C.; Henry D. Madsen, Coeur d'Alene, for appellant.

Amendola Doty & Brumley, PLLC; Jennifer K. Brumley, Coeur d'Alene, for respondent.

GUTIERREZ, Chief Judge

Michael L. Brown appeals from the judgment of the district court dismissing his appeal as untimely. For the reasons that follow, we vacate and remand.

I. FACTS AND PROCEDURE

This appeal arises out of a divorce proceeding begun by Heather G. Brown (Heather) against Michael. On June 13, 2013, a magistrate signed a divorce decree, and the clerk of the district court file stamped the decree on June 14. On June 28, the clerk faxed the decree to Heather's attorney and to a number that was printed next to Michael's attorney's name on the certificate of service. However, according to an affidavit from Michael's attorney, the attorney did not receive the faxed copy of the decree that was sent on June 28. The facsimile number printed on the certificate of service, which was part of the divorce decree prepared by Heather's attorney, was not the same facsimile number printed on Michael's attorney's notice of appearance. Moreover, the certificate of service does not indicate that the court clerk mailed a copy of the decree to either party. Michael's attorney first learned of the decree on July 23, during a telephone conversation with Heather. Heather then emailed a copy of the decree to Michael's attorney around 5:30 p.m. that day, but the attorney did not receive the email until the next afternoon, forty days after the decree was entered. On July 24, the attorney's legal assistant obtained a copy of the decree from the courthouse. Additionally, the certificate of service that accompanied the decree in the record contains a handwritten notation that the decree was refaxed on July 24 to the correct facsimile number that was originally listed on Michael's attorney's notice of appearance.

On July 26, Michael's attorney faxed a notice of appeal to the district court at 5:08 p.m. The clerk of the district court file stamped the notice of appeal on July 29, the next business day. Michael then filed an amended notice of appeal, and Heather filed a motion to dismiss, contending that the notice of appeal was not timely filed. Michael responded to Heather's motion and included an affidavit from Michael's attorney and the attorney's legal assistant.[1] The district court dismissed the appeal as untimely. Michael appeals.

II. ANALYSIS

Michael raises three issues on appeal; first, whether the district court erred by dismissing his appeal as untimely; second, whether Idaho Rule of Civil Procedure 77(d) extended the time in which Michael had to file his appeal; and third, whether Michael is entitled to attorney fees and costs on appeal. Heather also seeks attorney fees and costs on appeal. We begin by addressing Michael's first and second issues together.

A. Timeliness of Michael's Appeal

A divorce decree issued by a magistrate in accord with I.R.C.P. 54(a) is a final judgment. Under I.R.C.P. 83(a), a party may appeal to the district court from a final judgment issued by a magistrate. The appeal must be filed within forty-two days after the entry of the judgment. I.R.C.P. 83(e); see also I.R.C.P. 6(a) (defining how time is computed). A judgment is entered once it is has been file stamped by the clerk of the district court. I.R.C.P. 58(a); State v. Ciccone, 150 Idaho 305, 306-07, 246 P.3d 958, 959-60 (2010). An appeal is commenced by filing a notice of appeal with the district court, I.R.C.P. 83(e), and the notice may be filed by facsimile, see I.R.C.P. 5(e). Facsimile filings may be made to the court only during the normal working hours of the clerk and only if there is a facsimile machine in the office of the filing clerk of the court. I.R.C.P. 5(e)(2). "The failure to physically file a notice of appeal or notice of cross-appeal ...


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