Landreneau v. Fontenot

GUIDRY, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Jerris Dent Lan-dreneau, moves to dismiss the appeal of the defendant-appellant, Sandra Louise Fonte-not, on the ground that the appeal was untimely. We agree and dismiss.

After a hearing in this suit for separation from bed and board was held on March 4, 1988, the trial court rendered judgment in open court granting the separation finding mutual fault on the part of both parties. A judgment to that effect was signed on March 23, 1988. No motion for new trial was filed, and no request for written notice of judgment was made. A motion and Order for Devolutive Appeal was filed on May 20,1988, by defendant. This order was granted and signed on May 31, 1988.

The period during which an appeal from a judgment of separation may be taken is provided in La.Code Civ.Proc. Art. 3942(A) which states:

An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1)-(3).

Since no motion for a new trial was made and since notice of judgment was not required to be sent under La.Code Civ.Proc. Art. 1913, the delays for taking a devolu-tive appeal in the instant suit began with the expiration of the delay for applying for a new trial. La.Code Civ.Proc. Art. 2087. La.Code Civ.Proc. Art. 1974 provides in pertinent part that, “The delay for applying for a new trial shall be seven days, exclusive of legal holidays_ this delay commences to run on the day after the judgment was signed.”

Applying the above law to the instant case, since the judgment was signed on March 23, 1988, defendant had until April 4, 1988, to apply for a new trial. C.C.P. Art. 1974. This allowed an appeal to be taken in this matter by May 4, 1988. C.C. P. Art. 3942. Since the order for an appeal in the instant case was not filed until May 20th and not signed until May 31,1988, this appeal is untimely.

Accordingly, the appeal of the defendant-appellant is hereby dismissed at her cost.

APPEAL DISMISSED.