Bruton v. Bruton
| Docket Number: | 2013-CA-01868-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-28-2015 Opinion Author: Griffis, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Divorce - Timeliness of notice of appeal - M.R.A.P. 4(a) - M.R.A.P. 4(g) - Excusable neglect Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell, Fair and James, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 10-03-2013 Appealed from: LAMAR COUNTY CHANCERY COURT Judge: M. RONALD DOLEAC Disposition: Denied motion for out-of-time appeal Case Number: 2012-0224-GN-G |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Charles Irvin Bruton, Jr. |
DAVID NEIL MCCARTY |
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| Appellee: | Allison Hipwell Bruton | AMANDA JANE PROCTOR, W. BENTON GREGG | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce - Timeliness of notice of appeal - M.R.A.P. 4(a) - M.R.A.P. 4(g) - Excusable neglect |
| Summary of the Facts: | Allison Bruton filed a complaint for divorce from Charles (Chuck) Bruton Jr. She was granted a divorce by a judgment entered on May 9, 2013. Chuck was granted an extension, through May 31, 2013, to file a post-trial motion. By order dated July 22, 2013, the chancellor granted a clarification, as to the payment of school tuition, and denied the remainder of Chuck’s motion. On August 22, 2013, Chuck filed a motion for a stay of the judgment of divorce pending appeal. On August 30, 2013, Chuck filed a notice of appeal. On September 4, 2013, in the chancery court, Chuck filed a motion for additional time to file a notice of appeal nunc pro tunc. By order dated September 4, 2013, and filed September 5, 2013, the chancellor denied Chuck’s motion for a stay of the judgment of divorce pending appeal. Then, by order dated October 3, 2013, the chancellor denied Chuck’s motion for additional time to file a notice of appeal nunc pro tunc. On November 1, 2013, Chuck filed a second notice of appeal. The notice stated that the appeal was from the chancellor’s “order entered on October 3rd, 2013.” The Mississippi Supreme Court entered an order that dismissed Chuck’s first appeal as untimely. Thus, the Court of Appeals has before it the appeal of the chancellor’s October 3, 2013 order that denied Chuck’s motion for additional time to file a notice of appeal nunc pro tunc. |
| Summary of Opinion Analysis: | M.R.A.P. 4(a) requires the notice of appeal to be filed within thirty days after the date of entry of the judgment or order appealed from. Here, the first notice of appeal in this case was filed after the thirty-day deadline. M.R.A.P. 4(g) gives a trial court the authority to extend the thirty-day period to file a notice of appeal. If the motion is not filed until the extension period has begun to run, the burden rests on the appellant to show the failure to file a timely notice was a result of excusable neglect. Here, Chuck filed his motion for an extension within thirty days after the expiration of the time otherwise prescribed by the rule. Thus, the chancellor had the authority to grant an extension. However, since the motion was filed after expiration of the prescribed time, the chancellor’s discretion to grant the extension was only upon a showing of excusable neglect. The chancellor determined that excusable neglect was not shown. The Comment to Rule 4 provides that “[e]xcusable neglect will not be shown by counsel's busy trial schedule.” Therefore, the chancellor was within his discretion to deny Chuck’s motion to extend the period for appeal under Rule 4(g). |
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