Family Law

John W. Dennis, Jr., Esquire

When case is tried before a commissioner and approved by judge, timeline for motion for new trial is accelerated and thus accelerates the time for filing notice of appeal. Lenz v. Lenz, No. 32265 (Mo. App. S.D., October 31, 2013), Sheffield, J.

Although this opinion merely recites the rules that have been in place for several years, it is appropriate to keep them in mind when a case is tried before a family court commissioner.

The court of appeals issued a show cause order as to why the Father’s appeal should not be dismissed as not timely filed. The Father argued that his motion was both a motion for new trial and a motion to amend. The appellate court disagreed.

It is clear from Rule 81.04(a) that a notice of appeal must be filed within ten (10) days of the finality of the judgment. “If the Father’s motion was a motion for new trial, it had to be filed within in fifteen (15) days of the court’s mailing (Rule 130); if Father’s motion was a motion to amend the judgment it had to be filed within thirty (30) days after entry of judgment.”

In this case, the Father’s motion sought nothing other than a new trial. “Because we have determined Father’s motion was a motion for new trial, he was bound by the timeline found in Rule 130. The motion had to be filed within fifteen (15) days of the mailing of the notice of the filing of the judgment of the trial court Rules 130.01, 130.13(a).”

Thus, the deadline for filing the notice of appeal was forty (40) days after the original entry and mailing on June 19, 2012; i.e. September 17, 2012. Appeal dismissed.