Charles Cannon v. Kristy A. Caldwell

ATTORNEYS FOR APPELLANT FILED
Carrie N. Lynn Apr 13 2017, 8:05 am
Tracy T. Pappas CLERK
Indiana Supreme Court
Indiana Legal Services, Inc. Court of Appeals
and Tax Court
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles Cannon, April 13, 2017
Appellant-Petitioner, Court of Appeals Case No.
89A01-1607-DR-1643
v. Appeal from the Wayne Superior
Court
Kristy A. Caldwell, The Honorable Gregory A. Horn,
Appellee-Respondent Judge
Trial Court Cause No.
89D02-1003-DR-31
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
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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,
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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
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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). This introduced a new concept into Indiana law: what
does “extraordinarily compelling reasons” mean in this context?
[9] Our supreme court did not define “extraordinarily compelling reasons” in O.R.,
but it set forth three justifications that supported its determination that
extraordinarily compelling reasons existed to restore a father’s right to appeal
the trial court’s judgment granting the adoption of his child to the child’s foster
parents without his consent. First, the O.R. court explained that our appellate
rules “‘are merely means for achieving the ultimate end of orderly and speedy
justice.’” Id. at 972 (quoting In re Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind.
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2014)). The court further noted that that policy had been incorporated in
Appellate Rule 1, which provides that appellate courts may permit deviation
from the appellate rules. Id.
[10] Second, the O.R. court relied on the father’s attempts to perfect his appeal.
Four days before the notice of appeal was due, the father, who was incarcerated
when the adoption order was issued, sent a letter to the trial court for
appointment of appellate counsel for the “express purpose” of appealing the
decision. However, the trial court did not appoint counsel until twenty-three
days after the deadline for filing his notice of appeal had passed. Id. Even then,
observed the court, appellate counsel filed an amended notice of appeal, “which
the motions panel of the court of appeals accepted as being sufficient.” Id.
[11] Third, “and perhaps most important,” the O.R. court explained that the parent-
child relationship was “‘perhaps the oldest of the fundamental liberty interests’”
and “‘one of the most valued relationships in our culture.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000), and In re I.A., 934 N.E.2d 1127, 1132 (Ind.
2010)). The court stated, “It is this unique confluence of a fundamental liberty
interest along with ‘one of the most valued relationships in our culture’ that has
often influenced this Court as well as our Court of Appeals to decide cases on
their merits rather than dismissing them on procedural grounds.” Id. The
court summed up as follows: “[I]n light of Appellate Rule 1, Father’s attempt to
perfect a timely appeal, and the constitutional dimensions of the parent-child
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relationship, we conclude that Father’s otherwise forfeited appeal deserves a
determination on the merits.” Id.1
[12] The O.R. court’s analysis leaves several important questions unanswered. Do
extraordinarily compelling reasons depend on the appellant’s absence of fault or
a finding of excusable neglect, or is it based on the nature of the right(s) at stake
or the manifest injustice of the result? What combination of these factors is
necessary to find extraordinarily compelling reasons, and how should they be
weighed and balanced? As the O.R. court explained, the Appellate Rules exist
to achieve orderly and speedy justice, and Appellate Rule 1 permits us to
deviate from the rules. But in deciding whether it is appropriate to deviate from
the rules, is our emphasis to be on order or justice?2 Is uniformity in the
application of the rules itself a form of justice? Might our deviation from the
rules in some cases but not others be perceived as unjust?
1
Ultimately, the O.R. court concluded that the record supported the trial court’s conclusion that the father’s
consent to the adoption of O.R. was not required and that adoption was in the child’s best interest and
affirmed the trial court’s judgment. 16 N.E.3d at 975.
2
The Court of Appeals has addressed whether extraordinarily compelling reasons exist to restore the
forfeited right to appeal under a variety of circumstances. In some cases, we have found extraordinarily
compelling reasons and addressed the appeal on the merits. See Robertson v. Robertson, 60 N.E.3d 1085, 1090
(Ind. Ct. App. 2016) (order modifying child custody); Elliott v. Dyck O’Neal, Inc., 46 N.E.3d 448, 459 n.7 (Ind.
Ct. App. 2015) (Brown, J., dissenting) (garnishment order based on in rem judgment following mortgage
foreclosure), trans. denied (2016); Satterfield v. State, 30 N.E.3d 1271, 1275 (Ind. Ct. App. 2015) (denial of bail);
Morales v. State, 19 N.E.3d 292, 296 (Ind. Ct. App. 2014) (denial of postconviction relief), trans. denied (2015).
In others, we have found no extraordinarily compelling reasons. See Hampton v. State, No. 88A04-1608-CR-
1862, 2017 WL 961895, at *3 (Ind. Ct. App. Mar. 13, 2017) (concluding that direct appeal of probation
agreement was forfeited but trial court’s subsequent actions were subject to review); Snyder, 62 N.E.3d at 459
(dismissing interlocutory appeal in dissolution case); Blinn, 19 N.E.3d at 822 (dismissing appeal of small
claims judgment). We have also addressed the merits of a forfeited appeal even in the absence of
extraordinarily compelling reasons. See Milbank Ins. Co. v. Ind. Ins. Co., 56 N.E.3d 1222, 1228 (Ind. Ct. App.
2016) (declaratory judgment action seeking to determine insurance coverage).
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[13] Here, the scant record before us shows that Father receives SSI of $733 per
month. However, the Indiana Child Support Guidelines specifically provide
that means-tested public assistance programs, including SSI, are excluded from
the definition of weekly gross income used to determine a parent’s child support
obligation. Ind. Child Support Guideline 3(A)(1). “‘SSI is a federal social
welfare program designed to assure that the recipient’s income is maintained at
a level viewed by Congress as the minimum necessary for the subsistence of
that individual.’” McGill v. McGill, 801 N.E.2d 1249, 1252 (Ind. Ct. App. 2004)
(quoting Cox v. Cox, 654 N.E.2d 275, 277 (Ind. Ct. App. 1995)). “As a matter of
law, SSI recipients lack the money or means to satisfy child support
obligations.” Id. (citing Cox, 654 N.E.2d at 277); see also Ward v. Ward, 763
N.E.2d 480, 482 (Ind. Ct. App. 2002) (“[T]his court has consistently held that
SSI recipients, as a matter of law, cannot be held in contempt for failure to
comply with child support orders.”). Thus, the child support modification
order setting Father’s child support at $35 per week is on its face in clear
violation of the Child Support Guidelines.3 We conclude that this obvious
injustice is an extraordinarily compelling reason to restore Father’s forfeited
right to appeal and decide the appeal on the merits. Unless and until our
supreme court further defines extraordinarily compelling reasons and we can
discern its actual elements rather than merely looking at the result, we must
3
There is no evidence of other income or assets in the record in this case.
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conclude that a manifestly unjust result constitutes an extraordinarily
compelling reason to reach the merits of an otherwise forfeited appeal.
[14] As for the merits of Father’s appeal, we have already concluded that the child
support modification order is in violation of the Indiana Child Support
Guidelines. Accordingly, we reverse and remand for proceedings consistent
with this opinion.
[15] Reversed and remanded.
Baker, J., and Barnes, J., concur.
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