Horowitz v. Parker
| Docket Number: | 2002-CA-00306-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-12-2003 Opinion Author: Irving, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Notice of appeal - Reopening time for appeal - M.R.A.P. 4(h) Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Myers and Griffis, JJ. Non Participating Judge(s): Chandler, J. Procedural History: Motion for Out-of-Time Appeal Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-04-2002 Appealed from: Madison County Chancery Court Judge: Gail Shaw-Pierson Disposition: ORDER WAS ENTERED MODIFYING THE VISITATION SCHEDULE AS SET OUT IN THE ORIGINAL DIVORCE. MOTION TO REOPEN TIME FOR APPEAL OR, IN THE ALTERNATIVE, FOR EXTENSION OF TIME IN WHICH TO FILE NOTICE OF APPEAL WAS DENIED. Case Number: 2000301 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Julia Lynn Gates Horowitz |
EDUARDO ALBERTO FLECHAS
JAMES D. BELL |
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| Appellee: | James Winfred Parker, Jr. | STANLEY FRANK STATER |
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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: | Notice of appeal - Reopening time for appeal - M.R.A.P. 4(h) |
| Summary of the Facts: | James Parker, Jr. filed a motion against Julia Horowitz, his former wife, seeking specific visitation rights with the parties' minor children. The court granted the requested relief, but neither party was informed of the court order until forty-nine days after its entry. On the day following receipt of notice of the order, Julia filed a motion seeking to reopen or extend the time for taking an appeal. The chancellor denied the motion, and Julia appeals. |
| Summary of Opinion Analysis: | Julia argues that the court erred by denying her motion to reopen since neither party received notice of the entry of the order until after the thirty-day appeal period had expired and she promptly filed her motion to reopen. M.R.A.P. 4(h) allows the court to reopen the time for appeal upon motion filed within 180 days of entry of the order or within 7 days of receipt of such notice, if it finds that a party entitled to notice of the entry of order did not receive such notice from the clerk or any party within 21 days of its entry and no party would be prejudiced. Julia filed well within the seven days specified in the rule. Prejudice means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal. Here, the court’s justification for denying the motion amounts to a retaliatory gesture because of Horowitz’s alleged non-compliance with the court’s earlier order. This is at odds with the rule’s contemplation of “prejudice.” Therefore, the case is reversed and remanded. |
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