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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 JANICE CARRIERE,

 3          Petitioner-Appellee,

 4 v.                                                                    No. A-1-CA-35354

 5 DENNIS CARRIERE,

 6          Respondent-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Gerard J. Lavelle, District Judge

 9 Mark A. Filosa
10 Truth or Consequences, NM

11 for Appellee

12 Dennis Carriere
13 Belen, NM

14 Pro se Appellant

15                                 MEMORANDUM OPINION

16 VIGIL, Judge.

17   {1}    Respondent Dennis Carriere (“Respondent”) seeks to appeal several issues

18 related to the division of marital property in this divorce proceeding. [DS 4] The
 1 decree of dissolution at issue in this appeal was entered by the district court on

 2 December 15, 2015, making Respondent’s notice of appeal due no later than January

 3 14, 2016. See Rule 12-201(A)(2) NMRA (requiring that notices of appeal be filed

 4 within thirty days of the judgment or order appealed). The notice of appeal appearing

 5 in the record of this case, however, was file stamped on January 30, 2016, and this

 6 Court issued a calendar notice proposing to dismiss this appeal as untimely. [RP 127;

 7 CN 2-3] In his memorandum in opposition to that disposition, however, Respondent

 8 asserted that a notice of appeal was timely filed and suggested that the notice’s failure

 9 to appear in the record may have resulted from an error by the district court clerk’s

10 office. [MIO 2] For support, Respondent’s memorandum was accompanied by a

11 statement from his former counsel asserting that the notice of appeal was timely filed

12 on January 14, 2016, and suggesting that the notice of appeal appearing in the record

13 of this case could be a courtesy copy served upon the clerk of the district court that

14 was mistakenly file stamped on January 30, 2016, as if being received for the first

15 time.

16   {2}   Because Respondent’s assertions raised a factual question that had not been

17 addressed by the district court, we issued an order of limited remand instructing the

18 district court to receive evidence on the topic of whether Respondent had filed a

19 timely notice of appeal and “enter an order containing whatever findings of fact are



                                               2
 1 necessary to establish the date that Respondent’s notice of appeal was filed.” [ORD

 2 3] The district court has since entered an order containing such findings and we now

 3 dismiss this appeal as untimely filed.

 4   {3}   The findings entered by the district court take judicial notice of the fact that

 5 January 30, 2016, was a Saturday. [Findings 1] As a result, there would have been no

 6 staff available to mistakenly file stamp a courtesy notice filed with the clerk’s office

 7 on that date. [Id.] Instead, the records of the district court indicate that the notice

 8 appearing in the record of this case was electronically filed on January 30, 2016, and

 9 subsequently processed by the clerk’s office on February 2, 2016, which was a

10 Tuesday. [Findings 2] Those findings leave no possibility that the notice of appeal

11 appearing in the record is a mistakenly dated copy served upon the clerk. It thus

12 appears that the notice of appeal in this case was, in fact, filed on January 30, 2016,

13 and not on January 14 of that year. As that notice was due on January 14, 2016, we

14 dismiss this appeal as untimely filed.

15   {4}   IT IS SO ORDERED.


16                                          _________________________________
17                                          MICHAEL E. VIGIL, Judge

18 WE CONCUR:


19 _____________________________

                                               3
1 LINDA M. VANZI, Chief Judge


2 _____________________________
3 STEPHEN G. FRENCH, Judge




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