Erwin v. Erwin
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Cite as 2011 Ark. App. 337
ARKANSAS COURT OF APPEALS
No.
CA 10-1276
JENNIFER ERWIN
Opinion Delivered May 4, 2011
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SEVENTEENTH DIVISION
[NO. DR-06-223]
V.
JON CHRISTOPHER ERWIN
APPELLEE
HONORABLE MACKIE M. PIERCE,
JUDGE
DISMISSED
PER CURIAM
In this appeal from the denial of Jennifer Erwin’s motion to relocate with her children, Jon
Erwin has filed this motion to dismiss for failure to file a timely notice of appeal. We agree,
though not for the reasons stated in Mr. Erwin’s motion. Therefore, we dismiss.
In March 2010, Ms. Erwin filed a motion to move to Florida. The court denied the motion
by letter opinion on July 2 and by order entered July 16. (The court entered an identical order on
July 22, but we find this order to be of no consequence.) Ms. Erwin filed a motion for
reconsideration on July 20. The circuit court entered an order denying this motion on August 24,
and Ms. Erwin filed her notice of appeal on September 22.
A timely notice of appeal is essential to this court obtaining jurisdiction.1 Our rules of
1
E.g., Stacks v. Marks, 354 Ark. 594, 127 S.W.3d 483 (2003); Hausman v. Throesch, 104 Ark.
App. 113, 289 S.W.3d 493 (2008).
Cite as 2011 Ark. App. 337
appellate procedure generally require that a notice of appeal be filed no less than thirty days from
the entry of judgment.2 But if a party files a motion to vacate, alter, or amend the judgment within
ten days after the entry of the judgment, the time for filing the notice of appeal is extended to
thirty days after the entry of the order disposing of the last motion outstanding.3 If the circuit
court neither grants nor denies the motion within thirty days of its filing, the motion is deemed
denied by operation of law as of the thirtieth day, and the notice of appeal is due within thirty days
of that date.4
Here, Ms. Erwin filed a motion for reconsideration on July 20, 2010. Because this motion
was one to vacate, alter, or amend the judgment and was filed within ten days of the entry of the
circuit court’s final order, it extended the time for filing the notice of appeal. Mrs. Erwin’s motion
was deemed denied by operation of law on August 19. The circuit court formally denied the
motion five days later, but because the order was entered after the thirty-day period prescribed by
the rule, it was of no consequence.5 Ms. Erwin had until September 20 (September 18 was a
Saturday) to file her notice of appeal. She did not file her notice of appeal until September 22, two
days too late.
In short, Ms. Erwin filed an untimely notice of appeal. We dismiss her appeal.
2
Ark. R. App. P.—Civ. 4(a).
3
Ark. R. App. P.—Civ. 4(b)(1).
4
Id.
5
See Farm Bureau Mut. Ins. Co. v. Sudrick, 49 Ark. App. 84, 896 S.W.2d 452 (1995) (stating
that once a motion is deemed denied by operation of law, the circuit court loses jurisdiction to
decide the motion, and any order that purports to grant the posttrial motion is void and of no
effect). See also Murchison v. Safeco Ins. Co. of Ill., 367 Ark. 166, 238 S.W.3d 11 (2006) (applying the
“deemed denied” rule to a motion to modify judgment under Ark. R. Civ. P. 60).
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