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2012-UP-200 - Kemp v. Kemp

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. 

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Bonnie Teresa Thomas Kemp, Appellant,

v.

Bradford Kemp, Respondent.


Appeal from Greenville County
Billy A. Tunstall, Jr., Family Court Judge


Unpublished Opinion No. 2012-UP-200  
Submitted March 1, 2012 – Filed March 21, 2012


APPEAL DISMISSED


H. Michael Spivey and Melissa D. Spivey, of Mauldin, for Appellant.

Donna June Jackson, of Clinton, and Rodney M. Brown, of Fountain Inn, for Respondent.

Bobby H. Mann, Jr., of Greenville, for Guardian ad Litem.

PER CURIAM: Bonnie Teresa Thomas Kemp (Wife) appeals the family court's approval of her agreement entered into pursuant to her decree of divorce from Bradford Kemp.  Wife argues the family court erred in (1) failing to ensure the agreement was freely and voluntarily entered; (2) failing to ensure the agreement was fair and equitable to Wife; (3) refusing to allow the case to go to trial and forcing the parties to continue to negotiate; and (4) refusing to entertain the recommendation of the guardian ad litem as to custody.  We dismiss.[1]

A party wishing to appeal an order of the family court must serve a notice of appeal on all respondents "within thirty (30) days after receipt of written notice of entry of the order or judgment."  Rule 203(b)(1), (3), SCACR.  A timely Rule 59(e) motion to alter or amend judgment stays the time for appeal until the appellant receives "written notice of entry of the order granting or denying such motion."  Rule 203(b)(1), SCACR; Rule 59(f), SCRCP.  A motion to alter or amend the judgment must be served not later than ten days after receipt of written notice of the entry of the order.  Rule 59(e), SCRCP.  Timeliness of an appeal is a jurisdictional matter.  Elam v. S.C. Dep't of Transp., 361 S.C. 9, 17, 602 S.E.2d 772, 776 (2004).  An untimely notice of appeal shall be dismissed.  Rule 203(d)(3), SCACR. 

Here, Wife received written notice of entry of the family court's order on November 23, 2010.  Wife filed and served her Rule 59(e) motion on December 9, 2010, the sixteenth day following the receipt of the family court's written order.  Because her Rule 59(e) motion was untimely, Wife was required to file any notice of appeal within thirty days from November 23, 2010, the date she received written notice of the final order.  Wife served her notice of appeal on February 28, 2011, which was more than thirty days after her receipt of written notice of the family court's order.  Accordingly, this appeal is untimely and must be dismissed. 

APPEAL DISMISSED.

WILLIAMS, THOMAS, and LOCKEMY, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.