Marriage of Dummer Nascimento , 2001 MT 15N ( 2001 )

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No. 00-384
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 15N
IN RE THE MARRIAGE OF
KATHY R. DUMMER,
Petitioner and Respondent,
and
JOSEPH F. NASCIMENTO,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph F. Nascimento, Attorney at Law, Pro Se, Las Vegas, Nevada
For Respondent:
Robyn Weber, Attorney at Law, Helena, Montana
Submitted on Briefs: February 1, 2001
Decided: February 15, 2001
Filed:
__________________________________________
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Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. It shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 The marriage of the parties was dissolved in the First Judicial District Court, Lewis and
Clark County, in 1993. On June 19, 2000, Joseph F. Nascimento filed a notice of appeal
from two post-dissolution orders: a November 3, 1999, "Order on emergency interim
parenting plan and temporary restraining order," and an April 19, 2000 order denying
Nascimento's request to have the presiding judge in this matter disqualified for cause
pursuant to § 3-1-805, MCA. We conclude we have no jurisdiction to consider the appeal
of the November 3, 1999 order and we affirm the April 19, 2000 order.
¶3 Rule 5, M.R.App.P., provides that a notice of appeal in a civil case must be filed with
the clerk of the district court within 30 days from the date of the judgment or order
appealed from. Time limits for filing an appeal are mandatory and jurisdictional. An
appellant has a duty to perfect an appeal in the manner and within the time limits provided
by law; absent such compliance, this Court does not acquire jurisdiction to entertain and
determine the appeal. Anderson v. Bashey (1990), 241 Mont. 252, 255, 787 P.2d 304, 305-
06.
¶4 Under the record and argument here presented, the time for appeal had long since
expired as to the November 3, 1999 order when Nascimento filed his June 19, 2000 notice
of appeal. As a result, we conclude we lack jurisdiction to decide the issues Nascimento
raises as to the November 3, 1999 order.
¶5 Nascimento's sole remaining issue on appeal is whether his request to disqualify Judge
Dorothy McCarter for bias was properly denied. Nascimento states in his notice of appeal
that he was not served with a copy of the order denying that request until June 2, 2000,
and nothing in the record contradicts that statement. Therefore, it appears the notice of
appeal was timely filed as to that order.
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¶6 When a motion to disqualify a district judge is denied on the basis that statutory
requirements for such a motion were not met, the denial is a legal question we review for
correctness. Dambrowski v. Champion Intern. Corp., 2000 MT 149, ¶ 51, 300 Mont. 76,
¶ 51, 3 P.3d 617, ¶ 51. Section 3-1-805(1)(a), MCA, requires an affidavit to disqualify a
district judge for cause to be filed more than 30 days before a date set for hearing or trial.
The Honorable John W. Whelan, who presided over the disqualification hearing in this
matter, found that Nascimento's motion to disqualify Judge McCarter was filed one day
before a scheduled hearing in this case. The record supports that finding. In addition, an
affidavit in support of a motion for disqualification for cause must be accompanied by a
certificate of counsel of record that the affidavit has been made in good faith. Section 3-1-
805(1)(b), MCA. Nascimento, a licensed attorney who appeared on his own behalf in this
matter, filed no such certificate of good faith in support of his affidavit for
disqualification. Finally, Judge Whelan found that nothing in the record or presented in
oral argument indicated that Judge McCarter was prejudiced or biased against
Nascimento. The record and the transcript of the disqualification hearing support that
finding as well. For these reasons, we hold that Judge Whelan correctly denied
Nascimento's motion to disqualify Judge McCarter for cause.
¶7 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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