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Cannon v. Caldwell

Court of Appeals of Indiana

April 13, 2017

Charles Cannon, Appellant-Petitioner,
Kristy A. Caldwell, Appellee-Respondent

         Appeal 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

          Crone, Judge.

         Case Summary

         [¶1] 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.

         Facts 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.

         [¶3] 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.

         [¶4] 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 reconsider.

         [¶5] 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).

         Discussion and Decision

         [¶6] 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)).

         [¶7] 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 Rule 9(A)(5).

         [¶8] 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). ...

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