from the Wayne Superior Court The Honorable Gregory A. Horn,
Judge Trial Court Cause No. 89D02-1003-DR-
ATTORNEYS FOR APPELLANT Carrie N. Lynn Tracy T. Pappas
Indiana Legal Services, Inc. Indianapolis, Indiana
Charles Cannon ("Father") appeals the trial
court's order modifying his child support. Although
Father's notice of appeal was untimely, we conclude that
an extraordinarily compelling reason exists to restore his
forfeited right to appeal and decide his appeal based on the
merits. In this case, the child support modification order is
in clear violation of the Indiana Child Support Guidelines.
This manifest injustice constitutes an extraordinarily
compelling reason to restore Father's right to appeal and
requires the reversal of the child support modification
order. Accordingly, we reverse and remand.
and Procedural History
[¶2] In March 2011, Father's
marriage to Kristy A. Caldwell ("Mother") was
dissolved. The dissolution order granted Mother custody of
the parties' two minor children and ordered Father to pay
$20 per week in child support. The children also received a
monthly derivative benefit of $93 each from Father's
Social Security Disability ("SSD"). In total, the
children received $266 per month.
At some point, Father became ineligible for SSD and began
receiving Social Security Income ("SSI"). The
record does not reveal the amount of Father's former SSD
benefit, but his SSI benefit is $733 per month. Mother
"is employed but makes less than minimum wage."
Appealed Order at 1. When Father began receiving SSI, the
children stopped receiving any derivative benefits, and
Mother filed a motion to modify child support.
On May 27, 2016, the trial court held a hearing on
Mother's motion, and both parties appeared pro se. The
hearing was conducted in the trial court's chambers in
summary fashion. The same day, the trial court issued its
order modifying Father's child support obligation to $35
per week, and the order was entered in the chronological case
summary ("CCS"). On June 23, 2016, Father, by
counsel, filed a verified motion to reconsider modification.
On June 29, 2016, the trial court denied his motion to
On July 21, 2016, Father, by counsel, filed his notice of
appeal and later filed an appellant's brief. Mother did
not file an appellee's brief. Because no transcript of
the hearing on Mother's motion was available, Father
filed with the trial court a verified statement of the
evidence pursuant to Indiana Appellate Rule 31(A). The trial
court did not certify Father's statement of the evidence
but instead issued its affidavit in response to Father's
statement pursuant to Indiana Appellate Rule 31(D).
Father argues that the trial court erred in ordering him to
pay child support because SSI does not constitute income for
the purposes of calculating a child support obligation.
Before considering his argument on the merits, we first
address whether Father has forfeited his right to appeal. We
may address sua sponte whether an appellant has forfeited his
or her right to appeal and whether the right to appeal should
be restored. Snyder v. Snyder, 62 N.E.3d 455, 458
(Ind.Ct.App. 2016) (citing Blinn v. Dyer, 19 N.E.3d
821, 822 (Ind.Ct.App. 2014)).
Our Appellate Rules require that a party initiate an appeal
by filing a notice of appeal within thirty days after the
entry of a final judgment is noted in the CCS. Ind. Appellate
Rule 9(A)(1). Father filed a motion to reconsider, but filing
such a motion does not "delay the trial or any
proceedings in the case, or extend the time for any further
required or permitted action, motion, or proceedings under
these rules." Ind. Trial Rule 53.4(A); see also
Citizens Indus. Group v. Heartland Gas Pipeline, LLC,
856 N.E.2d 734, 737 (Ind.Ct.App. 2006) (stating that "a
motion to reconsider does not toll the time period within
which an appellant must file a notice of appeal."),
trans. denied (2007). Father's notice of appeal
was untimely. "Unless the Notice of Appeal is timely
filed, the right to appeal shall be forfeited except as
provided by [Post-Conviction Rule 2]." Ind. Appellate
Our supreme court has made clear that "although a party
forfeits its right to appeal based on an untimely filing of
the Notice of Appeal, this untimely filing is not a
jurisdictional defect depriving the appellate courts of
authority to entertain the appeal." In re Adoption
of O.R., 16 N.E.3d 965, 971 (Ind. 2014). "Rather
the right to appeal having been forfeited, the question is
whether there are extraordinarily compelling reasons
why this forfeited right should be restored."
Id. (emphasis added). ...