Alverio v. Alverio

• Court: Hawaii Intermediate Court of Appeals
• Decided: March 24, 2010
• Docket: 30255
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPOR\TER

NO. 30255

lN THE INTERMEDIATE COURT OF APPEALS

oF THE STATE oF HAWA:‘I

DAWN ALVERIO, Plaintiff-Appellee, v. JOEL ALVERlO, Defendant-Appellant

j APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO§ O9~l-lO9l)

ORDER GRANTING FEBRUARY l2, 20lO MOTlON TO DISMlSS APPEAL FOR LACK OF JURlSDICTlON (By: Nakamura, Chief Judge, Fujise and Leonard, JJ.)

Upon review of (1) Plaintiff-Appellee Dawn Alverio's (Appellee) February 12, 2010 motion to dismiss appellate court case number 30255 for lack of jurisdiction, (2) the lack of any opposition by Defendant-Appellant Joel Alverio (Appellant) to Appellee's February 12, 2010 motion to dismiss appellate court case number 30255 for lack of jurisdiction, and (3) the record, it appears that we do not have jurisdiction over Appellant's appeal from the Honorable Jennifer Ching's October 28, 2009 divorce decree, because Appellant’s appeal is untimely pursuant to Rule 4(a)(1) of the Hawafi Rules of Appellate Procedure (HRAP). b

The October 28, 2009 divorce decree is an appealable final divorce decree pursuant to Hawafi Revised Statutes § 571- 54 (2006) and the holding in Eaton v. Eaton, 7 Haw. App. 111, 118-19, 748 P.2d 801, 805 (1987). However, Appellant did not file his December 21, 2009 notice of appeal within thirty days after entry of the October 28, 2009 divorce decree, as HRAP Rule Therefore, Appellant's

4(a)(1) requires for a timely appeal.

appeal is untimely.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

The failure to file a timely notice of appeal in`a civil matter is a jurisdictional defect that the parties cannot waive and the appellate courts cannot disregard in the exercise of judicial discretion. Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1128 (1986); HRAP Rule 26(b) ("[N]o court or judge or justice thereof is authorized to change the jurisdictional requirements contained in Rule 4 of [the HRAP]."). Consequently, we lack jurisdiction over this case. Accordingly,

IT IS HEREBY ORDERED that Appellee’s February 12, 2010 motion to dismiss appellate court case number 30255 for lack of jurisdiction is granted, and this appeal is dismissed for lack of appellate jurisdiction. 2

DATED: Honolulu, HawaiUH MarCh 241 2010-

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Chief Judge

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Associate Judge