IN THE SUPREME COURT OF THE STATE OF MONTANA


## FW" "'+q T.-.-n,. : 2- ., 

### P 

## .. ,- -*/ IN RE MATTER OF M.B., L.B., and F.B., .-F

6. "ifit>

, - Youths in Need of Care.

APPEAL FROM: District Court of the Thrteenth Judicial District, In and for the County ofYellowstone, The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD: For Appellants: Bard G. Middleton; Attorney at Law; Billings,Montana For Respondent: Hon. Joseph P. Mazurek; Attorney General; TarnmyK. Plubell; Assistant Attorney General; Helena, Montana Dennis Paxinos; Yellowstone County Attorney; Marcia Good Sept; Deputy County Attorney; Billings, Montana For GuardianAd Litem: Damon Gannett; Attorney at Law; Billings,Montana

Submitted on Briefs: March 20,1997 Decided: April 8, 1997 Filed:Justice TerryN. Trieweiler delivered the opinion of the Court. The appellants, Christie and Scott Banderob, moved the District Court for the Thirteenth Judicial District in Yellowstone County for an order allowing them to file a late notice ofappeal. After ahearing, the District Court deniedthe motion,pursuant to Rule 5(c), M.R.App.P. Banderobs appeal. We affirm the judgment ofthe District Court. The dispositive issue on appeal is whether the District Court erred when it denied Banderobs' motion to file a late notice of appeal. FACTUALBACKGROUND Christie and Scott Banderob are the natural parents ofL.B., F.B., and M.B., all minor children. On November 2, 1993, the Montana Department of Health and Human Services filed a petition for termination of Banderobs' parental rights to L.B. and F.B., to award permanent custody to the Department, and to award temporary legal custody of M.B. to the Department until M.B. reached the age of eighteen. On October 20, 1995,the District Court issued an order which terminated Banderobs' parental rights. The State then filed the judgment and notice of entry of judgment on October 26, 1995. On March 20, 1996, Banderobs filed a pro se motion in which they requested the District Court to allow them to file a late notice of appeal.Banderobs did not disputethat they failedto file a notice of appeal within sixty days ofthe service of notice of entry of judgment, asrequired by Rule 5(a)(l), M.R.App.P. They claimed,however, that due to extenuating circumstances they shouldbe allowed to file a late notice of appeal. In support oftheir claim, Banderobs asserted that: (1) they are uneducated and have

no knowledge of the legal system; (2) despite their efforts, they were unable to contact Paul Toennis, their trial attorney, during December 1995; (3) when they finally contacted Toennis

on January 10, 1996, he failed to inform them of their rights pursuant to Rule 5(c), M.R.App.P.; (4) they attempted to contact the District Court directly, but received no assistance; and (5) they made a good faith attemptto file a timely notice of appeal. At the conclusion of the hearing, the District Court held that: "The Banderobs failed to show any excusable neglect or good cause which would extend the 60 day filing limit for

an additional 30 days. Even ifthey had, the Banderobs failed to file a notice of appeal in the extended time period." Accordingly, the District Court denied Banderobs' motion to file a late notice of appeal. DISCUSSION Did the District Court err when it denied Banderobs' motion to file a late notice of appeal?When we review a district court's conclusions of law, the standard of review is whether those conclusions are correct. 

### Carbon County v. 

### Union Reserve 

### Coal Co., Inc. (1995), 271 Mont. 459,469, 898 P.2d 680,686. Banderobs contend that the District Court erred when, pursuant to Rule 5(c), M.R.App.P., it denied their motion to file a late notice of appeal. Specifically, they assert that, because of extenuating circumstances, they should be allowed to file a late notice of appeal. Furthermore,they claim that the District Court erred when it concludedthat they did not establish good cause or excusable neglect for their failure to file a timely notice of appeal. Rule 5 ofthe Montana Rules ofAppellate Procedureis entitled "Timefor filing notice of appeal." Rule 5(a)(l), M.R.App.P.,provides, in relevant part, as follows: [I]fthe State ofMontana, or any political subdivisionthereof, or an officer or agency thereofis aparty the notice ofappeal shallbe filedwithin 60 days from the entry ofthejudgment or order or 60 days fiomthe service ofnotice of the entry of judgment. The District Court issued its order which terminated Banderobs' parental rights on October 20, 1995. Subsequently, on October 26, 1995, the District Court entered its judgment and the State served notice of the entry ofjudgment. Banderobs did not file a notice of appeal within sixty days of service. Therefore, they did not comply with Rule 5(a)(l), M.R.App.P.Rule 5(c), M.R.App.P., allows a district court to extend the period of time during which a party can file a notice of appeal. It provides, in relevant part, as follows: The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than the 30 days after the expiration of the time prescribed by Rule 5(a) for civil cases 

### . . . . Rule 5(c), M.R.App.P. Banderobs did not move the District Court to allow them to file a late notice ofappeal until March 20, 1996. At that time, the additional thirty days provided for in Rule 5(c), M.R.App.P., had also expired. Therefore, that motion was not timely. In Northwestern National Insurance Co. v. Agra-Steel(1981), 193 Mont. 437,439, 632 P.2d 330, 33 1,we stated: In every appeal the first question is that of jurisdiction. Hand 

### v. Hand (1957), 131Mont. 571, 576,312P.2d 990,992. Before proceeding we must consider whether ornot Agra-Steel properly perfected itsright ofappeal. Appellant had the duty to perfect its appeal in the manner and within the time limits provided by law. Absent such compliance, this Court does not acquire jurisdiction 

## .. .. Furthermore,in Zell v. Zell(1977), 172 Mont. 496,498, 565 P.2d 31 1, 312, we held that: "It is well settledin Montana that an untimely notice of appeal is a jurisdictional defect, which renders this Court powerless to hear the appeal." Finally, we note that in their appellate brief, Banderobs concede that, pursuant to the plain language of Rule 5, M.R.App.P., and the principles delineated in NorthwesternNational Insurance 

### Co. andZell, their "requestfor filing a late notice of appeal was untimely and that the court lacks jurisdiction to entertain their motion." We therefore concludethat Banderobs failedto comply with the applicable Montana Rules ofAppellateProcedure and that such jurisdictional defects are fatal to their claims on appeal. Accordingly,we hold that the District Court did not err when it denied Banderobs' motion to file a late notice of appeal.

We Concur: 

### /

Justices