In re the MARRIAGE OF John T. GRAY, Petitioner-Appellee, v. Enthus Ann Gray, Respondent-Appellant.
No. 17829-PR
Supreme Court of Arizona, En Banc.
Feb. 20, 1985.
695 P.2d 1127
Secondly, though it was actually a Pima County Probation Officer who had a copy of the revocation petition and offered it to the trial judge, we do not believe fundamental error occurred when the trial court failed to inform appellant of the alleged probation violation. The prosecutor‘s summary of the alleged violations gave appellant adequate notice of the reasons for his probation revocation. Our original erroneous belief that defense counsel had and offered a copy of the revocation petition to the trial judge was only an additional reason why we believed appellant had adequate notice.
In the next argument we consider,1 appellant correctly states that this Court erred in finding that Probation Officer Stinson supervised appellant beginning in 1978. As asserted by appellant, the record reflects that Stinson did not begin supervising appellant until September of 1982 and did not come into personal contact with appellant until October of 1982. Thus, appellant argues that Stinson had no knowledge upon which to base his identification of appellant‘s signature on various exhibits admitted at trial.
We disagree. Though limited, Stinson‘s exposure to appellant was sufficient enough for the trial court to allow him to identify appellant‘s signature. The record reflects that Stinson began supervising appellant in September of 1982 and that he reviewed appellant‘s file at that time. Stinson made personal contact with appellant on October 6, 1982, when the hospital voted appellant out of treatment. The file Stinson reviewed contained numerous examples of appellant‘s signature. There was no need, as appellant contends, for Stinson to have actually seen appellant sign his name. See M. Udall & J. Livermore, Arizona Law of Evidence § 111, at 222 (2d ed. 1982). The trial court did not abuse its discretion in finding that Stinson had adequate knowledge to identify appellant‘s signature.
We reject appellant‘s arguments regarding our disposition of the credit for time spent on probation except to note that our cite to former
HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.
Dale L. Williams, Camp Verde, for respondent-appellant.
HAYS, Justice.
Enthus Ann Chance (formerly Enthus Ann Gray) petitions this court to review a decision of the court of appeals ordering dismissal of her appeal on grounds of untimeliness. In re Gray v. Gray (1984) [No. 1 CA-CIV 7856, filed Sept. 11, 1984]. We have jurisdiction pursuant to
We address only one issue: Is payment of the record preparation fee, required by
The facts follow. The trial court entered judgment against Enthus Ann Chance on May 3, 1984. She had 30 days in which to file notice of appeal.
The court of appeals, sua sponte, entered an order dismissing petitioner‘s appeal as untimely. The court cited as authority Ariz. Dept. of Economic Security v. Hall, 120 Ariz. 514, 586 P.2d 1326 (App. 1978). In Hall, the court of appeals held that a superior court clerk could properly refuse to file a notice of appeal tendered without contemporaneous payment of this preparation fee. The court reasoned that if payment of this fee is a condition precedent to filing a notice of appeal, then any payment after the time for appeal had run would result in an untimely appeal—even though the clerk had received the proper pleading within the statutory period.
We disagree with Hall and note that it never came to this court for review. Certainly, the timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review. Korens v. Arizona Dept. of Economic Security, 129 Ariz. 426, 427, 631 P.2d 581, 582 (App.1981). We do not believe, however, that payment of a record preparation fee should be a prerequisite to filing a notice of appeal.
The preparation fee, required by
Requiring timely filing of a notice of appeal serves two important functions: First, it gives warning to the appellee that the judgment is not final. Second, it serves to bar tardy appeals. Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981). Here, we believe that both of those functions were served. On May 31, 1981 petitioner mailed notices of appeal to both the clerk of Yavapai County Superior Court and to respondent. The time for filing notice of appeal did not expire until after June 4, 1984. We conclude that both the superior court and respondent were aware, within the statutory period, that petitioner intended to appeal. There is, therefore, no possibility that respondent may have relied, to his detriment, upon the trial court‘s judgment. Similarly, the appeal was not so tardy that it should be barred on those grounds.
Why, then, would Hall bar petitioner from her appeal? The policy of Hall is to insure that the $40 record preparation fee is promptly paid. According to Hall, until this fee is paid, no notice of appeal may be filed. However good the policy of insuring prompt payment of fees, it must be balanced against the price of dismissing potentially well-founded appeals. The right to appeal is remedial and, where expressly given, the rule is to uphold it, if possible. Sears v. Walker, 127 Ariz. 432, 436, 621 P.2d 938, 942 (1980); Davis v. Campbell, 24 Ariz. 77, 80, 206 P. 1078, 1079 (1922).
Nowhere in
The appellant in a civil action appealed to the court of appeals or the supreme court, as the case may be, shall upon filing the notice of the appeal pay to the clerk of the superior court from which the action is appealed a preparation fee of forty dollars. If an appellee files a cross appeal in the same case a preparation fee of forty dollars shall be paid to the clerk of the superior court. (Emphasis added.)
It is a rule of statutory construction that clear language in a statute is given its usual meaning unless impossible or absurd consequences would result. Balestrieri v. Hartford Accident & Indemnity Insurance Co., 112 Ariz. 160, 163, 540 P.2d 126, 129 (1975). In this statute, the word “upon” suggests that notice of appeal must first be filed and then payment of the preparation fee is required. Cf. Hays v. The Arizona Corporation Comm‘n, 99 Ariz. 358, 361, 409 P.2d 282, 284 (1965) (“upon” does not necessarily imply immediacy but can imply within a reasonable time thereafter); Webster‘s New International Dictionary (3rd ed. 1965) (definition of “upon“—“immediately following on: very soon after“).
Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955), is factually similar to the case at bench. In Parissi, Anthony Parissi inadvertently failed to pay a $5 fee required to be paid “upon the filing” of the notice of appeal. Id. The clerk refused to file the notice of appeal until he received the filing fee. By the time the $5 was paid the period for appeal had run. Id. The Supreme Court held that the clerk of the court‘s receipt of the Parissi notice of appeal, within the 30-day period for appeal, was sufficient, despite the absence of the filing fee. Id.
GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.
HOLOHAN, Chief Justice, dissenting.
The clear language of
The decision by the majority has frustrated the purpose of the statute which is to have the appellant pay at least a small part of the expense associated with the preparation of an appellate record. Today‘s decision places the clerk of the superior court in the unhappy position of being in the collection business while the appellate courts of this state decide on the famous “case by case” method what is a reasonable time within which to pay the preparation fee.
I dissent.