In re the Paternity of: T.D., A Minor Child: Sara K. Drake v. Charles C. DeLangis (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing May 31 2017, 9:52 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Rachele L. Cummins Brittany Blau
Smith Carpenter Fondrisi & Brittany Blau Law
Cummins, LLC Jeffersonville, Indiana
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of: T.D., May 31, 2017
A Minor Child: Court of Appeals Case No.
10A01-1612-JP-2929
Sara K. Drake,
Appeal from the Clark Circuit
Appellant-Petitioner, Court
The Honorable Vicki Carmichael,
v.
Judge
Trial Court Cause No.
Charles C. DeLangis, 10C04-1101-JP-7
Appellee-Respondent.
Bailey, Judge.
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Case Summary
[1] S.D. (“Mother”) and C.D. (“Father”) are the parents of T.D. (“Child”). Father
sought Trial Rule 60(B) relief from a child support order, and the trial court
entered an order granting Father relief and reducing the amount Father owed in
arrearage. Following entry of the trial court’s order, Mother failed to timely file
a motion to correct error or notice of appeal. Mother later filed a Trial Rule 72
motion requesting that the trial court re-set her deadline to make such filings.
The trial court denied Mother’s motion. Mother then filed a motion to correct
error, which the trial court denied. Mother now appeals.
[2] We affirm.
Issues
[3] Mother presents two issues for our review:
I. Whether the trial court abused its discretion in denying
Mother’s motion to correct error.
II. Whether this Court should consider a belated challenge to
the order modifying Father’s support obligation.
Facts and Procedural History
[4] Child was born in 2007, and on January 24, 2011, Mother filed a petition to
establish child support. Father was not represented and failed to personally
attend the hearing on Mother’s petition. On March 15, 2011, the trial court
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entered an order requiring that Father pay child support, including an amount
in arrearage.
[5] Father obtained counsel and on March 13, 2015, filed a petition to modify the
child support order. On March 20, 2015, Father filed a separate petition to
modify the arrearage. On June 9, 2016, the trial court held a pre-trial
conference at which it requested briefing concerning Father’s request to modify
the arrearage.1 The parties then briefed the issue, with Father arguing that he
was entitled to Trial Rule 60(B) relief.
[6] On August 22, 2016, the trial court entered an order granting Father relief and
modifying the arrearage. The Chronological Case Summary (“CCS”) contains
an August 22, 2016 entry concerning the trial court’s order, and the CCS also
contains the following entry dated August 23, 2016:
Automated ENotice Issued to Parties
Sent To: Attorney Cummins, Rachele Leigh [Mother’s
counsel]; Attorney Blau, Brittany Anne-Katherine
[Father’s counsel][.]
Appellant’s App. Vol. II at 7.
1
A transcript of the trial court proceedings has not been provided on appeal, but Father does not dispute this
aspect of Mother’s Statement of the Facts.
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[7] On October 18, 2016, Mother filed a Trial Rule 72 motion requesting that the
trial court set a new deadline to file either a motion to correct error or a notice
of appeal. In her motion, Mother alleged that counsel had not received
electronic notification of the trial court’s order. Mother attached two affidavits
to her motion, and further alleged that counsel became aware of the order on
October 6, 2016 by contacting the court. Father opposed Mother’s motion.
[8] On October 24, 2016, the trial court denied Mother’s motion. Mother then
filed a motion to correct error, which was denied. This appeal ensued.
Discussion and Decision
Denial of Motion to Correct Error
[9] Mother contends that the trial court abused its discretion when it denied her
motion to correct error, a motion following the denial of her initial motion to
set a new deadline to challenge the trial court’s order concerning arrearage. We
“review a trial court’s ruling on a motion to correct error for an abuse of
discretion.” Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). An abuse
of discretion occurs when the trial court’s decision “is clearly against the logic
and effect of the facts and circumstances before it or when the trial court errs on
a matter of law.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).
[10] Mother argues that the trial court abused its discretion in denying her motion to
correct error because, she contends, Indiana Trial Rule 72(E) supported
granting her initial motion. This trial rule provides, in pertinent part:
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When the service of a copy of the entry by the Clerk is not
evidenced by a note made by the Clerk upon the [CCS], the
Court, upon application for good cause shown, may grant an
extension of any time limitation within which to contest such
ruling, order or judgment to any party who was without actual
knowledge, or who relied upon incorrect representations by court
personnel.
Ind. Trial Rule 72(E) (emphasis added). Our supreme court has explained that
this provision was added “to provide essentially that counsel could rely on the
clerk’s office to send notice and if such notice was not received, to provide an
avenue through which to challenge the mailing of the notice.” Markle v. Indiana
State Teachers Ass’n, 514 N.E.2d 612, 614 (Ind. 1987). This rule applies “where
the CCS does not contain evidence that a copy of the court’s order was sent to
each party.” Taylor v. State, 939 N.E.2d 1132, 1136 (Ind. Ct. App. 2011).
[11] Here, the CCS contained evidence that Mother received electronic notice of the
trial court’s order. Moreover, in opposing Mother’s motion, Father attached a
copy of a notification that Father’s counsel received through e-mail on August
23, 2016. That notification included the case number, stated “Order Approving
– ORDER ON CHILD SUPPORT ARREARS,” and included a link to view
the trial court document. Appellant’s App. Vol. II at 105. Mother points out
that Clark County was in the process of transitioning to mandatory e-filing at
the time of the trial court’s order, with voluntary e-filing having commenced on
January 19, 2016 and mandatory e-filing to begin on September 1, 2016.
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[12] Mother argues that the trial court should have granted her motion to correct
error because the trial court ought to have granted her Trial Rule 72(E) motion.
In arguing that her motion should have been granted, Mother directs us to Lake
Holiday Conservancy v. Davison, but in that case there was “no notation in the
trial court’s [CCS] indicating that a copy of the . . . ruling was mailed” and so
we concluded the trial court did not abuse its discretion in extending a deadline
under the rule. 808 N.E.2d 119, 121 (Ind. Ct. App. 2004). Mother also directs
us to Taylor. There, the trial court denied a Rule 72(E) motion when a pro se
petitioner for post-conviction relief claimed that he had not received an order
denying his petition. We concluded that the trial court abused its discretion in
denying the petitioner’s Trial Rule 72 motion, observing that although the CCS
stated that notice was mailed to the petitioner, the CCS did “not reflect at
which address notice was made, and . . . further reflects that after the post-
conviction court undeniably had notice of [the petitioner’s] new address, it still
mailed an order to him at his previous address.” Taylor, 939 N.E.2d at 1136.
The record, we concluded, was sufficiently ambiguous to warrant relief. See id.
Moreover, in resolving other aspects of Taylor, we observed that the CCS was
“riddled with inaccuracies and contradictions and d[id] not match the pleadings
and orders in the record,” noting that “what transpired after [the petitioner]
filed his petition . . . [was] confusing even to us.” Id. at 1137. Taylor is
inapposite here, where the CCS revealed no mistake of court or inconsistency.
[13] Mother acknowledges that “counsel [has] a general duty to regularly check the
court records and monitor the progress of pending cases” but points out that
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counsel is “entitled to rely upon notification by the clerk pursuant to” Trial
Rule 72(D). Slay v. Marion Cty. Sheriff’s Dep’t., 603 N.E.2d 877 (Ind. Ct. App.
1992). Notably, though, the CCS here indicates that Mother was notified.
Moreover, in contrast to the unique facts and circumstances posed in Taylor
concerning the pro se litigant, it is apparent that Mother’s counsel had not
checked the docket from—at a minimum—August 23, 2016 through October 6,
2016, which is a period of forty-four days. Further, as of August 23, 2016, it
had been thirty-nine days since the last brief was filed concerning the motion,
and so a ruling on the motion was impending. Under these circumstances, we
cannot say that the trial court abused its discretion in declining to grant
permissive relief under Trial Rule 72(E), thus the trial court did not abuse its
discretion in denying Mother’s subsequent motion to correct error.
Belated Appeal
[14] Mother asks that we consider her belated challenge to the trial court’s order that
reduced the amount of child support in arrearage. Under Indiana Appellate
Rule 9(A), Mother has forfeited her right to appeal that order because she did
not timely file a notice of appeal. Forfeiture notwithstanding, under Appellate
Rule 1, we may “permit deviation” from the rules “upon the motion of a party
or the Court’s own motion.”2
2
We note that Mother has presented argument in her brief but has not tendered a motion to this Court.
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[15] In determining whether to waive Appellate Rule 9 and consider a belated
appeal, “the question is whether there are extraordinarily compelling reasons
why this forfeited right should be restored.” In re Adoption of O.R., 16 N.E.3d
965, 971 (Ind. 2014). Our supreme court has found compelling reasons where a
parent sought to challenge a judgment granting the adoption of his child
without consent. See id. at 972 (noting the fundamental liberty interest at stake).
Here, however, Mother has not persuaded us that the facts and circumstances
are so extraordinarily compelling as to warrant restoration of her forfeited
appeal. We accordingly decline Mother’s request to waive Appellate Rule 9.
Conclusion
[16] The trial court did not abuse its discretion when it denied Mother’s motion to
correct error, and we elect not to restore Mother’s forfeited right to appeal.
[17] Affirmed.
Mathias, J., and Altice, J., concur.
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