*** NOT FOR PUBLICATION ***
NO. 26662
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
IN THE INTEREST OF JANE DOE, Born on October 25, 2004
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(FC-S NO.
02-00549)
ORDER DISMISSING APPEAL
(By:
Nakayama, J., for the court (1))
Upon review of the
record, it appears that the right to appeal the December 17, 2003 order
awarding permanent custody
was conditioned upon the filing of a motion for reconsideration of the
order by January 6, 2004, twenty days after entry of
the December 17, 2003 order. See
HRS § 571-54; HRAP 4(a)(1); In re Doe, 77 Hawai`i 109,
113, 883
P.2d 30, 34 (1994); In re Doe, 3 Haw. App. 391,
394, 651 P.2d 492, 494 (1982).
The family court granted appellant an extension
of the twenty-day period because
the December 17, 2003 order was not settled in accordance with HFCR
58(a) and was
not served on appellant until January 7, 2004. However, the twenty-day
period for
filing a motion for reconsideration was a statutory jurisdictional
requirement
that could not be disregarded by the family court in the exercise of
judicial
discretion. In re Doe, 105 Hawai`i 505,
507, 100 P.3d 75, 78 (2004)("[The] failure
to file a timely [HRS § 571-54] motion for reconsideration . . .
is a
jurisdictional defect with respect to the subject matter that cannot be
waived by
the parties nor disregarded by the court in the exercise of judicial
discretion."). Although appellant did not receive timely notice of the
entry of
the December 17, 2003 order, appellant was not prevented from filing a
timely
motion for reconsideration inasmuch as appellant received on December
5, 2003 the
family court's written decision awarding permanent custody to appellee
that
directed appellee to prepare an order on the decision. See Bacon v. Karlin, 68
Haw. 648, 652, 727 P.2d 1127, 1131 (1986) (though appellant did not
receive prompt
notice of the entry of a final order, appellant had advance knowledge
that the
order would be filed and was not prevented from filing a timely notice
of appeal.) Appellant filed her motion for reconsideration of the
December 17, 2003 order on
January 16, 2004, thirty days after entry of the order. Thus, the
jurisdictional
requirement for appealing the December 17, 2003 order was not met and
we lack
jurisdiction over this appeal. See In re Doe, 105 Hawai`i at
507, 100 P.3d at 78
("a timely motion for reconsideration is a prerequisite to appeal from
orders
entered in the proceedings enumerated in HRS § 571-54, and . . .
absent compliance
with the statute, we lack appellate jurisdiction[.]"). Therefore,
IT IS HEREBY ORDERED that this appeal is
dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai`i,
April 10, 2006.
1. Considered by: Moon, C.J., Levinson,
Nakayama, Acoba, and Duffy, JJ.