Father appealed order that had awarded sole legal and physical custody of minor child to mother subsequent to trial court's denial of his motions for new trial, modification, and reconsideration. Mother filed a motion in the Appellate Court, arguing that the father's notice of appeal was untimely. The Court of Appeal holds that the appeal was timely pursuant to California Rules of Court 8.104 and 8.108 as the notice of appeal had been timely delivered to the trial court, but the trial court improperly refused to file the notice of appeal because it was not accompanied by a filing fee and there was a pending application for fee waiver. Trial court conceded that the notice of appeal was not filed the day it was presented for filing,the day it was due, in violation of Rules of Court 8.25(b)(1). Sixth District Court of Appeal holding: a pending fee waiver is not a lawful basis for refusing to file a notice of appeal as long as notice complies with Rules of Court 2.100 et. seq.

Case: Lezama-Carino v. Miller
Trial Court: Santa Clara
Judge: Leslie C. Nichols

Labels: child custody, nichols, notice of appeal