I had a hearing on 3/28/13 that resulted in a change of custody/visitation. After the hearing I was handed the minute order which is stamped "Received in the Drop Box" and dated March 28, 2013. The Findings and Order after Hearing was sent to me by Petitioner's lawyer with a court date "Filed" stamp of 5/16/13.
I never received service by the clerk or any party a document entitled "Notice of Entry of Judgment" or of a file-stamped copy of the judgment, showing the date of mailing.
Am I trying to see if I can file an appeal or not?
My ex's lawyer. Someone in the courtroom handed them to him and he handed it to me and said "This is your copy."
Interesting. Cal. R. Ct. 8.104(a)(1) requires an notice of appeal must be made no later than:
Now, had the judge's clerk personally handed you that yellow order, you would have been served on 3/28/2013, according to the Code of Civil Procedure, because "personal service" can be accomplished by handing the document to the party or witness.
But, if opposing counsel handed you the document, then you weren't served because the document was not entitled "Notice of Entry," nor was the copy of the judgment/order accompanied by proof of service.
Now, if the minute order expressly requires that opposing counsel prepare and serve a formal Order after Hearing, then you would not have been served until 5/16/2013 -- which would give you 60 days from that date to appeal. Cal. R. Ct. 8.104(c)(2) ("The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order")
But, if the minute order does not expressly require that opposing counsel prepare and serve a formal Order after Hearing, then you would have 180 days after 5/16/2013 to appeal. Cal. R. Ct. 8.104(a)(1)(C).
Hope this helps.
It's getting clearer but I'm still trying to piece this together. I sent you the verbiage from the minute order. Did you get that?
Here's what it says:
Counsel for Pet. shall prepare a formal order and submit to apposing counsel for approval as to form within 10 days and opposing counsel shall review and apporve within 10 days, plus 5 if by mail; shall prepare a judgement and submit to opposing counsel for apporval as to form within 30 days and opposing counsel shall review and approve with 20 days, plus 5 days if by mail. Sanctions may be imposed for failure to comply.
His lawyer sent me something to approve but his letter sounded like if I didn't he would just file it. He sent it to the judge asking him to approve it. I then received the File Endorced copy (dated May 16) of the Findings and Order after Hearing.
I was thinking about this and for the hearing before the trial, we received a continuance, and at that time "I am certain" his lawyer handed me my copy. After the actual trial, I was in such a state of shock that I can't recall exactly who gave me the minute order. Given that the minute order instructs opposing counsel to prepare an order after hearing, does this change my July 15th appeal date?
I hear you saying that based on "provable" notice of entry, I am within my allowable time frame for appeal.
I feel I should adopt and stick to the idea that opposing counsel handed me the minute order and simply go forth with the appeal. Do you agree? Is there any other information you feel may be helpful to me in this process?
Thank you for your help, and for always presenting info in a logical way I can understand.
FYI...even my ex does not know who handed me the minute order. See his email below.
Hi, yes, we are "all good." I had some PC issues that kept me off of here. Like you said, I'm not going to open up the can of worms on the whom served whom & when scenario. I'm just going to file the appeal. I will be back another time to ask some questions on that.
One good thing about apposing conseling recalling or not / or getting in the mix is that he is no longer representing my ex. Ex may be able to dig up a retainer again, but possibly not as the last trial cost him well over 10K. Regardless, I am going to file the appeal it and hopefully I can afford an attorney if we get a new trial.
I do have one last question. For my last hearing date that I want to appeal, is there a way to get a copy of the transcript that was taken during the trial proceedings? I'm pretty sure there was a court reporter present.
If you need a copy of a court hearing before you file the appeal and designate the record, then you can contact the court reporters office at the courthouse and request a transcript. It is not free. See the court website for contact info.
Yes, I need it bfore the hearing. I have a fee waiver on file with the court, do you have any idea if it covers a transcript? If not, I will pay for it, if I have to...hopefully it's not an outrageous fee.
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