Use it or lose it: the right to appeal your divorce case

In Ellis v. Ellis, a recent divorce case, the trial court entered three judgments. 2015 DJDAR 3738 (April 2, 2015). The first came after a six-day trial on spousal support, division of assets and attorney fees. The second judgment came a week later, and changed a single paragraph of the original. A couple months later, on a motion by the wife, the trial court made yet additional modifications.

The changes added language concerning the payment owed by the husband to the wife to equalize the division of community property and explaining how the equalization payment was determined, when the payment should be made, and clarifying that division of the parties' IRA accounts was subject to the equalization payment.

The wife appealed the judgment after the final revisions, but listed and attached only the first modified judgment. She did not mention the original, unmodified judgment. The husband said the wife's time to appeal ran from the original judgment and that her appeal was untimely. The Court of Appeal agreed and dismissed the case.

The opinion is a cautionary tale illustrating how a notice of appeal is jurisdictional and that, if the notice is filed too late, nothing can be done. Indeed, as appellate lawyers commonly say regarding timing of the notice of appeal: "use it or lose it."

Interestingly, the Court of Appeal changed its mind whether the notice of appeal was timely. When the husband first filed his motion to dismiss, an order was signed by the presiding justice summarily denying the motion. But, as noted in a footnote, "a summary denial of a Motion to Dismiss an appeal does not 'preclude later full consideration of the issue, accompanied by a written opinion, following review of the entire record and the opportunity for all oral argument.'"

Importantly, the opinion also explains that only when a second judgment is materially different from the first will a notice of appeal from the second preserve appellate review. California Rule of Court 8.104 (a)(1) provides that a notice of appeal must be filed "on or before the earliest of ... 60 days after the superior court clerk serves and the party filing the notice of appeal a document entitled 'Notice of Entry' or a filed-stamped copy of the Judgment, showing the date either was served."

The wife in Ellis had received a notice of entry of judgment from the clerk by mail on the day of the first judgment. Her contention that her time to appeal did not begin to run until she was served with the notice of the second judgment, a week later, hinged on whether the second judgment superseded the original pursuant to Rule 8.104. As the Ellis court explained, the operative question is whether the revised judgment results in a "substantial modification" of the original judgment." A "substantial modification" is one "materially effecting the rights of the parties."

The inquiry is whether there is a substantial change in the rights of the parties such that allowing an amendment nunc pro tunc (relating back to the original judgment) would unfairly deprive them of the right to contest the issue on appeal. In Dakota Payphone v. Alcaraz, for example, the trial court modified the default judgment to strike the portion of the damages award that was an excess of that requested in the complaint. 192 Cal. App. 4th 493 (2011). Although the result reduced the award by over $4 million, the Court of Appeal noted that the real issue was not the size of the award, but whether the defendant's right to appeal was affected by the amendment and it concluded that it was not. Citing a 1948 case, the Ellis court said that if "a party can obtain the desired relief from a judgment before it is amended, he must act - appeal therefrom - within the time allowed after its entry."

The Ellis court was not persuaded that there was a substantial change made to the judgment from which the wife appealed. It concluded that the modifications dealt only with date and timing changes, not with any changes that could have been raised on appeal. Moreover, the wife's notice of appeal failed to mention the earliest judgment. Thus, the court was not permitted to assume the appeal encompassed that earlier judgment.

The lesson: when calculating the time to appeal, start from the earliest possible date. You can always file a second notice of appeal and move to consolidate the cases. It's better to be safe than on the hook with your carrier.