Opinion
May 28, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 321
Williams, Trine & Greenstein, P.C., J. Conrad Metcalf, Boulder, for plaintiff-appellee.
Bernard D. Morley, Denver, for defendant-appellant.
RULAND, Judge.
Defendant, Robert W. Kindig, (Husband) appeals from a judgment increasing child support payments. We dismiss the appeal.
The parties were divorced on July 22, 1968. The decree of divorce required that Husband pay child support for three minor children in the amount of $400 per month.
In May of 1972, plaintiff, Helyn P. Kindig, (Wife) filed a motion for increase in child support payments. Hearings on the motion were held in October of 1972 and March of 1973, whereupon the trial court entered an order increasing the support from $400 to $550 per month. Wife then filed a motion to alter or amend the judgment. Following a hearing on this motion on April 23, 1973, the trial court increased the monthly child support payments from $400 to $700. Husband then filed a timely motion for new trial relative to the amended judgment, and this motion was finally denied on May 8, 1974.
On May 20, 1974, Husband retained new counsel and filed a second motion for new trial or to amend the judgment. As grounds for this motion, Husband alleged newly discovered evidence consisting of income tax returns for the calendar years 1972 and 1973 which were not available during the hearings on Wife's original motion to increase child support. The trial court denied Husband's second motion for new trial on June 3, 1974, on the basis that essentially the same information set forth in the tax returns was presented to the court during the March hearing on Wife's motion. Husband then filed his notice of appeal on June 18, 1974.
Wife asserts that we must dismiss this appeal because the notice of appeal was not filed within 30 days after the trial court ruled on Husband's first motion for new trial, and that, therefore, this court has no jurisdiction. We agree.
The judgment from which Husband appeals was entered on April 23, 1973. We note initially that if Husband's second motion for new trial filed on May 20, 1974 is construed as a request for rehearing on the basis of newly discovered evidence, then the motion was untimely since is was not filed within six months of the entry of the judgment as required by C.R.C.P. 59(b). In such circumstances, the trial court had no jurisdiction to consider the second motion for new trial, and this court has no jurisdiction to entertain an appeal. See Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077; Austin v. College/University Insurance Co., 30 Colo.App. 502, 495 P.2d 1162.
Even if we construe the second motion as requesting vacation of the order denying the first motion for new trial, we are aware of no authority in this jurisdiction for the proposition that the filing of such a motion suspends the time within which a notice of appeal must be filed. Conversely, while the purpose of a motion for new trial is to allow the trial court to correct any errors that it has committed, Walter v. Walter, 136 Colo. 405, 318 P.2d 221, if multiple motions for new trial were permissible prior to appeal, litigation could be extended indefinitely by tactical maneuvering in the trial court. See 9 J. Moore, Federal Practice 204.12(1). Hence, we conclude that the second motion for new trial did not suspend the time for filing the notice of appeal.
C.A.R. 4(a) lists four specific motions, the granting or denying of which extends the time for filing a notice of appeal. The filing of any other motion does not so extend that time, and the rule does not alter the date on which the judgment becomes final. See Dockery v. Travelers Co., 349 F.2d 1017 (5th Cir.); See also Reale v. People, 160 Colo. 93, 414 P.2d 118; Federal Lumber Co. v. Hanley, 33 Colo.App. 18, 515 P.2d 480. Thus, the second motion was without effect, and the notice of appeal not having been filed within 30 days from the trial court's order denying the first motion for new trial, this court has no jurisdiction, and the appeal is therefore dismissed. C.A.R. 4(a); Chapman v. Miller, 29 Colo.App. 8, 476 P.2d 763.
Appeal dismissed.
VAN CISE and STERNBERG, JJ., concur.