***
NOT FOR PUBLICATION ***
NO. 26800
IN
THE SUPREME COURT OF THE STATE OF HAWAI`I
IN
THE INTEREST OF JANE DOE, Born on August 17, 2003.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 04-09446)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of appellant's statement of jurisdiction, appellee's motion
to dismiss appeal, appellant's response to the
motion to dismiss appeal and the record, it appears that the June 14,
2004 order awarding permanent custody was
appealable by notice of appeal filed within thirty days after entry of
the July 29, 2004 order denying the motion for
reconsideration of the June 14, 2004 order, unless the time for appeal
was extended pursuant to HRAP 4(a)(4). Appellant
filed her notice of appeal on September 8, 2004, forty-one days after
entry of the July 29, 2004 order. HRAP 4(a)(4)(B)
permitted appellant to file a motion for extension of time to appeal
for excusable neglect by motion filed in the family court
by September 27, 2004, but no motion for extension of time to appeal
was filed and the time for appeal was not extended
by the family court. The appellate court may not extend the time for
appeal pursuant to HRAP 4(a)(4)(B) inasmuch as the
rule authorizes the time for appeal to be extended "by the court or
agency appealed from." The September 8, 2004 notice
of appeal is untimely and we lack jurisdiction. See HRAP 26(b)("no court or
judge or justice is authorized to change the
jurisdictional requirements contained in [HRAP] Rule 4"); Bacon v. Karlin, 68 Haw.
648, 650, 727 P.2d 1127, 1129
(1986)(the failure to file a timely notice of appeal in a civil matter
is a jurisdictional defect that can neither be waived by
the parties nor disregarded by the appellate court in the exercise of
judicial discretion). Therefore,
IT
IS HEREBY ORDERED that this appeal is dismissed for lack of appellate
jurisdiction.
DATED:
Honolulu, Hawai`i, December 9, 2004.