*** NOT FOR PUBLICATION ***
NO. 26297
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
CHRISTY L. LETHEM, Plaintiff-Appellant
vs.
LILY E. HAMILTON, Defendant-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(UCCJEA NO. 98-0028)
ORDER
DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that we do not have jurisdiction
over this appeal. Plaintiff-Appellant Christy L.
Lethem's (Appellant Lethem) appeal from the August 27, 2003 post-decree
order is not timely because Appellant Lethem
did not file his December 23, 2003 notice of appeal within thirty days
after entry of the August 27, 2003 post-decree order,
as Rule 4 of the Hawai`i Rules of Appellate Procedure (HRAP) required.
Appellant Lethem's November 4, 2003 motion
for reconsideration pursuant to Rule 59(e) of the Hawai`i Family Court
Rules (HFCR) did not extend the time period for
filing a notice of appeal pursuant to HRAP Rule 4(a)(3), because
Appellant Lethem did not file his November 4, 2003
motion for reconsideration within ten days after entry of the August
27, 2003 post-decree order, as HRAP Rule 4(a)(3)
required. Furthermore, the family court was not authorized to extend
the ten-day time period for filing a HFCR Rule 59(e)
motion for reconsideration, nor was it authorized to extend the
jurisdictional effect of HRAP Rule 4(a)(3). See HFCR 6(b)
(A family court "may not extend the time for taking any action under
Rules 52(b), 59(b), (d) and (e) and 60(b) of these rules
and Rule 4(a) of the Hawai`i Rules of Appellate Procedure, except to
the extent and under the conditions stated in them.");
HRAP Rule 26(b) ("[N]o court or judge or justice thereof is
authorized to change the jurisdictional requirements contained
in Rule 4 of [the HRAP].").
The failure of a party to file a timely
notice of appeal is a jurisdictional defect that the parties cannot
waive and we cannot
disregard in the exercise of judicial discretion. Bacon v. Karlin, 68 Haw.
648, 650, 727 P.2d 1127, 1129 (1986). Therefore, we lack jurisdiction
over this appeal. Accordingly,
IT IS HEREBY ORDERED that this appeal is
dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai`i, April 7, 2004.