March 19, 2014
D.C., JR., Appellant-Petitioner,
C.A., Appellee-Respondent, J.D.A. and B.A., Appellees-Intervenors
APPEAL FROM THE MADISON CIRCUIT COURT. The Honorable Thomas Newman. Jr., Special Judge. Cause No. 48D04-1102-JP-32.
ATTORNEY FOR APPELLANT: JILL A. GONZALEZ, Muncie, Indiana.
ATTORNEY FOR APPELLEES: J.D.A. & B.A.: MARK R. REGNIER, Bingham Farrer & Wilson, PC, Elwood, Indiana.
KIRSCH, Judge. FRIEDLANDER, J., and BAILEY, J., concur.
D.C., Jr. (" Father" ) appeals from the Madison Circuit Court's order denying his Petition for Change of Custody of his son, C.C. Concluding that Father's appeal was not timely filed, we dismiss this appeal.
FACTS AND PROCEDURAL HISTORY
On February 7, 2011, C.A. (" Mother" ) gave birth to C.C. out of wedlock and shortly thereafter C.C. began living with his maternal grandparents, J.D.A. and B.A. (" Grandparents" ). On February 18, 2011, Father filed a petition for paternity, in which he also requested custody of C.C. Grandparents filed a petition to intervene in the paternity action and petitioned for and were appointed as temporary guardians over C.C. Father then petitioned to intervene in the guardianship action, and the trial court joined the cases and transferred the guardianship action into this paternity proceeding.
Grandparents moved for temporary custody, and on June 20, 2011, the trial court entered an order establishing paternity in Father, granting Father visitation, and ordering C.C. to " remain in the custody, care, and control of the temporary guardians [Grandparents] pending a full hearing on all remaining issues." Appellant's App . at 76. The trial court also encouraged the parties to " work together toward an amicable resolution of all issues pending before [the] Court." Id. Three months later, on September 30, 2011, after the parties had reached an agreement and recited that agreement into the record in open court, the trial court entered an " Order on Agreed Entry," which resolved all pending issues, including custody, support, visitation, and health insurance. Id. at 98-100. The order specifically reflected the parties' agreement for Father and Grandparents to " enjoy joint legal custody of C.C." Id. at 98. The order also provided, " There is to be no child support due either from the [F]ather or from the [M]other." Id. at 99.
On June 26, 2012, Father filed a petition for change of custody, alleging that a continual and substantial change in circumstances had occurred since the previous shared custody order of September 2011. The trial court held an evidentiary hearing on Father's Petition on January 7, 2013. The trial court denied Father's Petition, thereby leaving the terms of the previous shared custody order in place.
The denial of Father's Petition for Change of Custody was entered into the CCS on January 31, 2013, with a notation that the order was signed January 17, 2013. Id. at 7. On February 8, 2013, Father filed a motion to correct error contending (1) " that the Court did not give its
finding[s] of fact and conclusions of law laying out its reasons for its ruling as required by statute" ; and (2) " that the evidence did not support the Court denying the Motion to Modify." Id. at 181. In his Motion to Correct Error, Father also requested an extension " until March 31, 2013 to submit [a] memorandum in support of Motion to Correct Error." Id. at 180. The trial court granted the extension to file the memorandum of law in an order dated February 12, 2013. Id. at 8, 180, 185. Father timely filed his memorandum of law. Id. at 190. Grandparents did not respond to Father's Motion to Correct Error, and the Motion was deemed denied pursuant to Indiana Trial Rule 53.3. The exact date of the deemed denial will be discussed below.
On or about May 30, 2013, Father filed his Notice of Appeal. After Father filed his appellant's brief, Grandparents filed a motion to dismiss the appeal for lack of jurisdiction. On November 22, 2013, the motions panel of this court denied Grandparent's Motion to Dismiss.
DISCUSSION AND DECISION
On appeal, Grandparents ask this court to revisit the issue of whether this appeal should be dismissed because Father's Notice of Appeal was not timely filed. Even though our motions panel ruled on this issue, Grandparents are not precluded from again presenting their arguments. Smith v. Deem, 834 N.E.2d 1100, 1103 (Ind.Ct.App. 2005) (we are not precluded overruling orders decided by motions panel), trans. denied . " It is well established that we may reconsider a ruling by the motions panel." Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 12 (Ind.Ct.App. 2006), trans. denied . " While we are reluctant to overrule orders decided by the motions panel, this court has inherent authority to reconsider any decision while an appeal remains in fieri." Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind.Ct.App. 2007).
Pursuant to Indiana Appellate Rule 9, a party initiates an appeal by filing a notice of appeal within thirty days after entry of judgment. " Unless the [n]otice of [a]ppeal is timely filed, the right to appeal shall be forfeited[.]" Ind. Appellate Rule 9(A)(5). Our Supreme Court has considered perfecting a timely appeal a jurisdictional matter. See Claywell v. Review Bd. of Ind. Dep't of Emp't & Training Servs., 643 N.E.2d 330, 330 (Ind. 1994). Absent a timely notice of appeal, no jurisdiction is conferred on this court. Id. Here, we must determine the date of the deemed denial of the motion to correct error in order to determine whether Father's appeal was timely.
Indiana Trial Rule 53.3 sets forth the time limitations that apply when a party files a motion to correct error. That rule, in pertinent part, provides as follows:
(A) Time limitation for ruling on motion to correct error. In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or
fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.
. . . .
(D) Extension of time for ruling. The Judge before whom a Motion to Correct Error is pending may extend the time limitation for ruling for a period of no more than thirty (30) days by filing an entry in the cause advising all parties of the extension. Such entry must be in writing, must be noted in the Chronological Case Summary before the expiration of the initial time period for ruling set forth under Section (A), and must be served on all parties. Additional extension of time may be granted only upon application to the Supreme Court as set forth in Trial Rule 53.1(D).
Ind. Trial R. 53.3 (emphasis added).
Here, the trial court's order denying Father's petition for change of custody was entered January 17, 2013. Appellant's App . at 7. Pursuant to Indiana Trial Rule 59(C), Father had thirty days to file his permissive motion to correct error; Father filed his timely motion to correct error on February 8, 2013. The trial court did not set the motion for a hearing, and, therefore, the motion would have been deemed denied forty-five days after it was filed, i.e., on March 25, 2013, and Father's Notice of Appeal would have been due thirty days thereafter, on April 24, 2013.
Indiana Trial Rule 53.3(D) allows a trial court to extend the time limitation for ruling on a motion to correct error for a period of no more than thirty days. At no time did Father seek an extension of this time limitation for ruling, and at no time did the trial court file an entry extending the time limitation.
In his Motion to Correct Error, Father requested an extension of time, until March 31, 2013, to file a memorandum of law in support of his motion to correct error. The trial court granted this motion in an order dated February 12, 2013. Appellant's App . at 8. Father filed a second motion for extension of time to file the memorandum on March 26, 2013, which the trial court denied.
Assuming without deciding that the trial court order granting Father's Motion for Extension to file the supporting memorandum also extended the deadline by which it must rule on the Motion to Correct Error to the extent permitted under Trial Rule 53.3(D), the new deadline for ruling would have been April 24, 2013. When the trial court failed to rule by such date, Father's Motion to Correct Error
was deemed denied and his Notice of Appeal would have been due May 24, 2013.
The Indiana Rules of Appellate Procedure provide that a party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty days after entry of a final judgment. In re D.L., 952 N.E.2d 209, 211 (Ind.Ct.App. 2011), trans. denied (citing App. R. 9(A)(1)). " The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal." Bohlander v. Bohlander, 875 N.E.2d 299, 301 (Ind.Ct.App. 2007) (citation omitted), trans. denied; see also App. R. 9(A)(5) (" Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C.R. 2.." ). Father's appeal had to be filed no later than thirty days after his Motion to Correct Error was deemed denied. At the earliest, the due date for the Notice of Appeal was April 24, 2013; at the latest, it was May 24, 2013. Father did not file his appeal until May 30, 2013. Without regard to the question whether the trial court's extension of time for filing the memorandum extended the time period for ruling on the Motion to Correct Error, Father's Notice of Appeal was not timely. A timely filing is a jurisdictional prerequisite; therefore, we do not have jurisdiction over Father's appeal and accordingly dismiss. See Marchand v. Review Bd. of Ind. Dep't of Workforce Dev., 905 N.E.2d 435, 439 (Ind.Ct.App. 2009) (dismissing for untimely notice of appeal).