# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA DA 23-0412

IN RE THE MARRIAGE OF: ACACIA JENSEN,

Petitioner and Appellant, ORDER and TIMOTHY JENSEN,

Respondent and Appellee. 

# F LED DEC 12 2023

Bowen GreeNnfood Clerk of Supreme Court State of Montana On November 7, 2023, Appellee Timothy Jensen (Timothy) moved to dismiss this appeal on the basis that Appellant Acacia Jensen (Acacia) had failed to timely file an opening brief or move for extension of time to do so.. On November 17, 2023, Acacia responded in opposition to Timothy's motion to dismiss and further filed three motions, captioned Request for Leave to Correct Clerical Errors, Request for Leave to Enforce Financial Obligations, andMotion forExtension ofTimeto OrderTrial Transcript andFile Opening Brief. Timothy responded in opposition to Acacia's motions on November 28, 2023, via Appellee's Combined Response to Motion for Extension ofTime to Order Trial Transcript and File Opening Brief and Requests for Leave to Correct Clerical Errors and forLeave to Enforce Financial Obligation. This Order resolves all pending motioris. This appeal began on July 31, 2023, when attorney Clifford B. Irwin filed a Notice of Appeal on Acacia's behalf. In that Notice, which Irwin signed as counsel of record, Acacia asserts, in part, "That all available transcripts ofthe proceedings in this case have been ordered from the court reporter contemporaneously with the filing of this notice of appeal. Ifall available transcriptshavenotbeen ordered,thatAppellanthas compliedwith 12/12/2023

Case Number: DA 23-0412the provisions ofMont. R. App. P. 8(3)1 contemporaneously with the filing ofthis notice

ofappeal." On August 30, 2023, Acacia, via Irwin as her counsel ofrecord, moved to remand this matter to the District Court for the purpose ofcorrecting a clerical error. This Court ultimately remanded the case for that purpose on September 27, 2023. The District Court record, apparently including the requested correction, was then filed with this Court on October 2, 2023. Nothing further was filed until Timothy moved to dismiss this appeal pursuant to M. R.App. P. 13(3), whichprovides that an appellee may move for dismissal ofthe appeal ifthe appellant fails to file a briefwithin the time provided. He argued that, pursuant to M. R. App. P. 13(1), Acacia had 30 days from the filing ofthe District Court record on October 2, 2023, to file her opening brief and that dismissal ofthe appeal was warranted because she had failed to do so. M. R. App. P. 8(1) provides that the record on appeal is composed ofthe original papers and exhibits filed in the district court, the transcript ofproceedings, if any, and a certified copy ofthe docket entries prepared by the clerk ofthe district court. In this case, since the record on appeal was not complete as the transcripts had not yet been filed, the 30-day time limit for filingthe openingbriefhadnotbegunto run. However,the obligation to timely arrange for the filing ofthose transcripts, or to request an extension oftime for such filing, is the appellant's. M. R. App. P. 9(3)(c), (4). Although Acacia asserted in her Notice of Appeal that she had ordered the transcripts, she had not timely moved for an extension oftime and they were thus due to be filed with the Clerk ofthis Court no later than September 11, 2023. In her response to Timothy's motion to dismiss, Acacia advises the Court that, her representation in the Notice ofAppeal that transcripts had been ordered notwithstanding,

1 M. R. App. P. 8(3) sets forth the procedure for ordering transcripts and the obligation ofpaying for the same. 2she had not, in fact has still not, ordered the necessary transcripts. She alleges that she ( cannot affordthe transcriptsbecause Timothy owesher funds aspart ofthe divorce decree. She further alleges that she cannot afford appellate counsel because ofTimothy's failure to transfer these fi

inds, and contends that Irwin filed herNotice ofAppeal "as a courtesy." In her contemporaneous Motion for Extension ofTime to Order Trial Transcript and File OpeningBrief,Acaciarequests 30 additional daysto orderthe transcripts and 60 days from that date to file her opening brief. We are not inclined to grantAcacia's requests. In her Notice ofAppeal, she falsely represented that she had ordered transcripts in compliance with the Rules of Appellate Procedure and yet over four months later she has not done so and further requests an additional 30 days in which to fulfill this obligation. Further, she failed to comply with M. R. App. P. 9(3)(b), which provides, in relevant part, that the appellant may move for extension of time to file the transcripts, based on the court reporter's inability to timely prepare the transcripts, with the 40-day time for transmission ofthe record, and the grant of such extension may not exceed 90 days from the filing ofthe Notice ofAppeal. She also failed to comply with M. R. App. P. 9(4), which requires an appellant to move this Court for any additional motions for extension oftime to file transcripts. Acacia does not explainwhy she failedtotimelyrequest any extensions oftimenorwhy shemisrepresented the status ofthe transcripts in her Notice ofAppeal. While she further alleges that she is not represented by counsel, we note that Irwin remains her counsel of record and, in addition to the Notice ofAppeal, has filed four motions and the response to Timothy's motion to dismiss. Whether Acacia is currently paying for Irwin's services has no bearing

on the fact that he has continued to represent her in this appeal. We agreewithTimothy thatAcacia failedto proseCuteher appeal by failingto order the necessary transcripts. State ex reL Dep't ofHealth & Emil. Scis. v. Reese, 260 Mont. 24, 27/858 P.2d 357, 359 (1993). On this basis, and Acacia's failure to comply with the Montana Rules ofAppellate Procedure, we find good cause to dismiss this appeal.

3IT IS ORDERED that the motion to dismiss this appeal is GRANTED, and this

appeal is DISMISSED withprejudice. The Clerk is directed to provide copies ofthis Order to all counsel ofrecord and to Acacia Jensen personally.

%rev , Dated this I Z- day ofDecember, 2023.

4 ChiefJustice