I find greater joy in child custody and support payment appeals than any other area of law. Appeals present a triple challenge; procedural requirements, cogent reasoning, and analysis of proceedings for errors or logical fallacies. The Indiana Rules of Appellate Procedure are pedantic, requiring strict adherence in most circumstances. The first procedural requirement to initiate an appeal is the filing of a Notice of Appeal. That notice is the subject on which in lucubrate here. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The primary procedural observation to make for an order being appealed is the time limitation for filing the Notice of Appeal. “A party initiates an appeal by filing a Notice of Appeal with the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary”[en1]. Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited[[en2] except as provided for in the Rules governing appeals seeking to set aside a criminal conviction[en3][emphasis added].
The failure to follow the Rules of Appellate Procedure can be fatal to an appeal which has been supported by a long line of case law.
Appealing a final judgment
The Initiation of an appeal of a final judgment is commenced by filing the Notice of Appeal with the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court. The procedures are set forth under Rule 9(1) of the Indiana Rules of Appellate Procedure. The Notice is to be filed within thirty days after the entry of a Final Judgment is noted in the Chronological Case Summary. However, if any party files a timely Motion to Correct Error, a Notice of Appeal must be filed within thirty days after the court's ruling on such motion is noted in the Chronological Case Summary or thirty days after the motion is deemed denied[en4] whichever occurs first.
What is a final judgment
A judgment is a final judgment if it meets one of the five following conditions[en5];
it disposes of all claims as to all parties;
the trial court in writing expressly determines that when there are multiple parties or claims that there is no just reason for delay and in writing expressly directs the entry of judgment as to fewer than all the claims or parties, or enters a summary judgment as to fewer than all the issues, claims or parties;
it is deemed final under a motion for relief from judgment;
it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under appropriate rules; or
it is otherwise deemed final by law.
Interlocutory Appeals of Right
An interlocutory appeal is one taken from an order that is provisional or temporary in nature. The root of interlocutory is in locution -- speaking -- and inter -- between -- which combines literally as speaking between. It is in the sense of seeking an opinion between the initiation of an action and its finality that interlocutory is found. Our Court of Appeals has stated that “a provisional order is designed to maintain the status quo of the parties”[en6]. In contrast, a final order “disposes of all claims as to all parties”[en7]. Thus, a provisional order, temporary in nature, terminates when the final order is entered[en8]. It merges with, and is extinguished by, the final order[en9]. This is an important note in that if a provisional condition is not address in particularity in a final order then it merges into that final order and is carried forward.
Interlocutory appeals taken as of right must be commenced within thirty days. Appeals from the following interlocutory orders are taken as a matter of right by filing a Notice of Appeal with the Clerk within thirty days after the notation of the interlocutory order in the Chronological Case Summary[en10]:
For the payment of money;
To compel the execution of any document;
To compel the delivery or assignment of any securities, evidence of debt, documents or things in action;
For the sale or delivery of the possession of real property;
Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction;
Appointing or refusing to appoint a receiver, or revoking or refusing to revoke the appointment of a receiver;
For a writ of habeas corpus not otherwise authorized to be taken directly to the Supreme Court;
Transferring or refusing to transfer a case under Trial Rule 75; and
Issued by an Administrative Agency that by statute is expressly required to be appealed as a mandatory interlocutory appeal.
Few interlocutory orders in child custody or child support cases are appealable as of right. In divorce proceedings interlocutory orders have generally originated under financial terms of temporary maintenance, payments of debts, real property, or distribution of marital monies. Temporary restraining orders are often issued to preserve marital property and prevent transfer or waste but our supreme court has held that a temporary restraining order is not appealable as of right based upon the granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction[en11].
Discretionary Interlocutory Appeals
An appeal may be taken from other interlocutory orders if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal. A party must first seek certification from the trial court of its order being appealed and then acceptance of the appeal from the Court of Appeals must be granted for a discretionary interlocutory appeal to proceed. Failure to do so deprives the reviewing court of jurisdiction to hear the appeal[en12]. The trial court has discretion whether to certify an interlocutory order to allow an immediate appeal upon a motion filed by a party requesting certification[en13]. The motion requesting certification of an interlocutory order must be filed in the trial court within thirty days after the date the interlocutory order is noted in the Chronological Case Summary. However, the trial court, for good cause shown, may permit a belated motion. If the trial court grants a belated motion and certifies the order, the court must make a finding that the certification is based on a showing of good cause and the court must additionally set forth the basis for that finding[en14].
The discretionary interlocutory appeal is then commenced by filing a Notice of Appeal with the Clerk within fifteen days of the Court of Appeals' order accepting jurisdiction over the interlocutory appeal[en15].
Appealing from a Motion to Correct Error
Appellate Procedure Rule 14(A) does not provide for the filing of a Motion to Correct Error in an interlocutory appeal[en16]. Rather, it is apparent that the rule permitting the court on its own motion or a party to amend the findings[en17] is intended to afford the trial court an opportunity to amend its own findings prior to the filing of an appeal[en18]. A direct appeal may be taken from a Motion to Correct Error if the party filed a timely Motion to Correct Error[en19]. Following the denial of a Motion to Correct Error a Notice of Appeal must be filed within thirty days after the court's ruling on such motion is noted in the Chronological Case Summary or thirty days after the motion is deemed denied[en20] whichever occurs first.
Dismissal for Untimely Notice
Our Supreme Court has unambiguously and repeatedly held that an untimely direct appeal “involves subject matter jurisdiction” and not the “procedural requirements to invoke a court’s jurisdiction over a particular case”[en21]. This has been the basis of the automatic dismissal of appeals when the notice was not timely perfected. The Court of Appeals has reasoned that its “subject matter jurisdiction is specified by the Indiana Rules of Appellate Procedure adopted by our Supreme Court”[en22]. Thus, it has followed that the appellate court lacks jurisdiction to hear an appeal which was not timely filed. Whether this is the proper interpretation has been called into question in a recent line of cases in Indiana and across the country. Attorneys or litigants relying upon the longheld viewed that appeals in which the Notice was not timely filed are subject to dismissal for want of jurisdiction may be doing themselves a disservice.
Jurisdictional Questions
The crux of this lucubration is the ultimate question of whether filing a Notice of Appeal outside of the time windows proscribed by the Indiana Rules of Appellate Procedure is fatal to an appeal based upon the court lacking jurisdiction. Many an appeal which has been filed outside the filing time deadline has been dismissed for want of “jurisdiction” based upon a long line of cases. Consistent throughout the various iterations of the Rules is the notion that forfeiture of an appeal is the price one pays for the untimely filing of the necessary papers to effect an appeal. The Court of Appeals has consistently held that a party’s failure to timely file the necessary papers deprived the reviewing courts of jurisdiction to entertain the appeal[en23]. The short answer to the jurisdiction question however is no. This is not intended to convey that time limits are ignored. Rather, it is the interpretation of “jurisdiction” upon which the reviewing court may entertain an appeal.
Jurisdiction applies only to prescriptions delineating the classes of cases -- subject-matter jurisdiction -- and the persons -- personal jurisdiction -- implicating that authority. Certain types of cases or disputes are appropriate to particular courts which invokes subject matter jurisdiction while the parties to a dispute must be properly served notice of the court’s jurisdiction which invokes personal jurisdiction. Legal errors such as deficiencies in motions are not a jurisdictional matter.
Our Court of Appeals has stated it this way. “[W]hile we might casually say, ‘Judge Flywheel assumed jurisdiction,’ or ‘the court had jurisdiction to impose a ten-year sentence,’ such statements do not have anything to do with the law of jurisdiction, either personal or subject matter. Real jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a small claims court, or a judgment rendered without any service of process. Thus, characterizing other sorts of procedural defects as ‘jurisdictional’ misapprehends the concepts”[en24]. More succinctly put in 2012 the Court has noted “a tendency to confuse jurisdictional defects with legal errors”[en25]. Thus, the Court is now saying that time deadlines are not a jurisdictional matter which appears consistent with the language of the Rules. Indeed our United States Supreme Court has acknowledge that it has “sometimes mischaracterized claim-processing rules or elements of a cause of action as jurisdictional limitations”[en26].
To begin, Appellate Rules 4 thru 8 are included under Title II which is specifically denominated “Jurisdiction.” In moving into the first rule under Title III of the Rules the language of current Rule 9(A) does not mention jurisdiction at all. That rule states, in part, “Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited . . .”[en27]. Forfeiture and jurisdiction are not the same. “Forfeiture” is defined in part as “[t]he loss of a right, privilege, or property because of a . . . breach of obligation, or neglect of duty”[en28]. Essentially this line of reasoning supports the proposition that jurisdiction is conferred upon the Court of Appeals through the filing of a belated Notice of Appeal and that dismissal for want of jurisdiction is improper.
The untimely filing of a Notice of Appeal is not a jurisdictional defect depriving the appellate courts of the ability to entertain an appeal. Instead, the timely filing of a Notice of Appeal is jurisdictional only in the sense that it is a prerequisite to the initiation of an appeal in the Court of Appeals required by the Rules. Timely filing relates neither to the merits of the controversy nor to the competence of the courts on appeal to resolve the controversy.
The untimely filing of his Notice of Appeal typically results in an Appellant losing his right to appeal -- or in the words of Appellate Rule 9(A) Appellant’s “right to appeal shall be forfeited.” In the instance of this rule the words “right” and “forfeited” are ripe for logomachy. That is, is there an argument to made as to an alternate interpretation? [I have previously written about The Morality of Wrong and Suddens cannot exist as a whole] I have contended that the justices of the Indiana Supreme Court, numerous panels of the Indiana Court of Appeals, and attorneys mimicking their reasoning have all erred in opining that missing the filing time deadline bars the court from having jurisdiction. This is based upon my definition of the terms. As I see it, a “right” is a noun meaning something that one possesses and is allowed to invoke at will. To “forfeit” is a transitive verb meaning to relinquish or give up. Thus to forfeit a right is to say I have relinquished my authority to make a demand and have it fulfilled. However, that is not the definition of a prohibition. A prohibition is that which forbids one from doing something. Put another way, as a child the right to select what station to watch on television after dinner was allocated amongst the siblings. That right would be forfeited for such things as improper behaviour at dinner or not helping clean up. That did not bar the offending child from watching television or asking the person with the right to select the channel the offender prefered. It stands then that missing the filing deadline is not a prohibition to proceeding on appeal. It is only that the decision to appeal has been relinquished by the tardy appellant and transferred to the court. I see nothing in the rule that prohibits the Court from deciding that the appeal may proceed. This position appears to finally have gained acceptance.
The Court in recent cases has taken the position that the right to appeal having been forfeited, produces the question of whether there are extraordinarily compelling reasons why this forfeited right should be restored. In a few recent cases that question was answered in the affirmative. In one the Court explained that “our appellate rules exist to facilitate the orderly presentation and disposition of appeals . . . and [as] our Court of Appeals has noted “we are mindful that our procedural rules are merely means for achieving the ultimate end of orderly and speedy justice”[en29]. This policy has been incorporated into our Rules of Appellate Procedure, providing in part: “The Court may, upon the motion of a party or the Court’s own motion, permit deviation from these Rules”[en30]. Thus, despite the “shall be forfeited” language of Rules the Rules themselves provide a mechanism allowing the Court to resurrect an otherwise forfeited appeal. However, there is a strong bias toward dismissal for missing the deadline.
Deciding Cases on the Merits
It has long been held that courts “prefer to decide issues on their merits, and not to erect procedural obstacles to their presentation”[en31]. Additionally, a parent’s interest in the care, custody, and control of his or her children is “perhaps the oldest of the fundamental liberty interests”[en32]. Child custody cases invoke “one of the most valued relationships in our culture”[en33] and along with the fundamental liberty interest has often influenced the Indiana Supreme Court as well as our Court of Appeals to decide cases on their merits rather than dismissing them on procedural grounds[en34]. Even when a claim lacks well-organized, cogently-reasoned arguments and is entirely devoid of citations to authority in contravention of the Rules[en35] the Court nevertheless recognizes the significant interests at stake in family law matters and the importance of finality and allowed otherwise deficient appeals to proceed[en36].
In an opinion from 12 March 2015 the Court again iterated the importance of family law matters and its preference for deciding cases on the merits. In that opinion the Court found “that Father’s claim lacks well-organized, cogently-reasoned arguments and is entirely devoid of citations to authority[en37]. Nevertheless, we recognize the significant interests at stake in family law matters and the importance of finality[en38]. Therefore, to the extent we are able, we will address Father’s issues.”
Dismissal for Other Rule Violations
The opinion issued yesterday was one in which significant violations of the Rules were observed but based upon the doctrine of deciding cases on the merits was allowed to proceed. To flout the rules and rely upon application of that doctrine and the child custody nature of the case can still be fatal. In one such case the writing panel stated that “[b]ecause [Appellant] has failed to substantially comply with the Indiana Rules of Appellate Procedure, we must dismiss his appeal.” The panel went on to note it is well settled that “[a] litigant who chooses to proceed pro se will be held to the same established rules of procedure that trained legal counsel are bound to follow. Also, the fact that he is proceeding pro se does not excuse him from complying with appellate rules”[en39]. Appellant’s violations were then detailed;
The seven issues listed in the statement of issues section of Appellant’s brief are not concise[en40], are improperly argumentative, and are not addressed in any logical sequence, if at all, in the argument section of the brief.
The statement of the case is improperly argumentative and fails to mention the motions addressed in the trial court’s ruling.
Appellant failed to file an appellant’s appendix[[en41] which should have included a copy of those motions[en42].
The statement of facts does not contain a single citation to the record on appeal[en43] and thus is essentially an unsubstantiated account of the proceedings from Appellant’s perspective.
The statement of facts is also improperly commingled with the argument section of the brief which makes numerous references to documents outside the record and baldly accused Appellee of perjury.
The argument does not contain a “concise statement of the applicable standard of review”[en44] and his contentions are not “supported by cogent reasoning”[en45].
Finally Appellant’s brief contains lengthy excerpts from the Indiana Child Support and Parenting Time Guidelines and supporting commentary, but has no explanation as to how those provisions should be applied to the issues raised.
Taken as a whole Appellant in this appeal has demonstrated a complete lack of cognitive ability to comprehend the Indiana Rules of Appellant Procedure and has clearly demonstrated contempt for the Indiana Court of Appeals.
As I have often written about additional procedural errors in appeals I will only reference those here and not rewrite them. The appropriate standard of review is necessary and required by rule but even an attorney misses that and many others. Failure to cite to authority is common as is interpolating argument into the Statement of the Facts. Pro se litigants typically make many of the common rule violations. I have addressed those and other errors when writing about whether the relationship with your child is worth following the rules of appellate procedure.
Although the statutes and court rules may remain static for a period of time the reviewing courts are interpreting or reevaluating them as the needs of justice require or the ethos of society dictates. Vigilance in following and observing these changes and applying them to current proceedings or upcoming appeals allows for practitioners or parents to achieve the best outcomes for the children subject to child custody orders.
notes
[1] Ind. App. Rule 9(A)(1) A party initiates an appeal by filing a Notice of Appeal with the Clerk (as defined in Rule 2(D)) within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court's ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first.
[2] Ind. App. Rule 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.
[3] Ind. P.C.R. Rule (2)
[4] Ind Tr. Rule 53.3(A) 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.
[5] Ind. App. Rule 2(H)
[6] Mosley v. Mosley, 906 N.E.2d 928, 929 (Ind. Ct. App. 2009).
[7] Daimler Chrysler Corp. v. Yaeger, 838 N.E.2d 449, 449-50 (Ind. 2005).
[8] Ind. Code § 31-15-4-14 (2014); Mosley v. Mosley, 906 N.E.2d 928, 930 (Ind. Ct. App. 2009).
[9] Mosser v. Mosser, 729 N.E.2d 197, 200 n. 3 (Ind. Ct. App. 2000).
[10] Ind. App. Rule 14(A)
[11] See Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 203 (Ind. 2012).
[12] Ind. Appellate Rule 14(B)(2) If the trial court certifies an order for interlocutory appeal, the Court of Appeals, in its discretion, upon motion by a party, may accept jurisdiction of the appeal.
[13] Ind. App. Rule 14(B)(1) The trial court, in its discretion, upon motion by a party, may certify an interlocutory order to allow an immediate appeal.
[14] Ind. App. Rule 14(B)(1)(a)
[15] Ind. App. Rule 14(B)(3) The appellant shall file a Notice of Appeal with the Clerk within fifteen (15) days of the Court of Appeals' order accepting jurisdiction over the interlocutory appeal.
[16] See Young v. Estate of Sweeney, 808 N.E.2d 1217, 1221 & n.6 (Ind. Ct. App. 2004) (filing a motion to correct error does not extend the thirty-day deadline to file a Notice of Appeal from an interlocutory order).
[17] Trial Rule 52(B) Upon its own motion at any time before a motion to correct errors (Rule 59) is required to be made, or with or as part of a motion to correct errors by any party, the court, in the case of a claim tried without a jury or with an advisory jury, may open the judgment, if one has been entered, take additional testimony, amend or make new findings of fact and enter a new judgment or any combination thereof if: (1) the judgment or findings are either against the weight of the evidence, or are not supported by or contrary to the evidence; (2) special findings of fact required by this rule are lacking, incomplete, inadequate in form or content or do not cover the issues raised by the pleadings or evidence; (3) special findings of fact required by this rule are inconsistent with each other; or (4) the judgment is inconsistent with the special findings of fact required by this rule.
[18] Hubbard v. Hubbard, 690 N.E.2d 1219, 1221-22 (Ind. Ct. App. 1998).
[19] Ind. Tr. Rule 59(C) The motion to correct error, if any, shall be filed not later than thirty (30) days after the entry of a final judgment is noted in the Chronological Case Summary.
[20] Ind. Tr. Rule 53.3(A)
[21] Greer v. State, 685 N.E.2d 700, 703-04 (Ind. 1997).
[22] Indiana Newspapers, Inc. v. Miller, 980 N.E.2d 852, 856 (Ind. Ct. App. 2012), aff’d on reh’g, 980 N.E.2d 863, trans. denied.
[23] Vail v. Page, 93 N.E. 705, 706 (Ind. 1911) “[B]y the failure to file the transcript within the statutory period . . . this court never acquired jurisdiction of the appeal . . . .”; Claywell v. Review Bd. of Ind. Dep’t of Emp’t & Traning Svcs., 643 N.E.2d 330, 330 (Ind. 1994) “This Court has considered perfecting a timely appeal a jurisdictional matter.”
[24] K.S. v. State, 849 N.E.2d 538, 541-2 (Ind. 2006)
[25] R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012) (citing K.S. v. State, 849 N.E.2d 538, 541 (Ind. 2006)
[26] Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010)
[27] Ind. App. Rule 9(A)(5)
[28] Black’s Law Dictionary 765 (10th ed. 2014); see also Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 54 (Ind. 2013) (noting “forfeiture is the failure to make the timely assertion of a right”) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
[29] In re Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014) (alterations omitted) (internal quotations omitted).
[30] Ind. App. Rule 1 These Rules shall govern the practice and procedure for appeals to the Supreme Court and the Court of Appeals. The Court may, upon the motion of a party or the Court's own motion, permit deviation from these Rules.
[31] Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848 (1976).
[32] Troxel v. Granville, 530 U.S. 57, 65 (2000).
[33] In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (quoting Neal v. DeKalb Cnty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003))
[34] In re Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014)
[35] Ind. Appellate Rule 46(A)(8)(a)
[36] Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008).
[37] Ind. Appellate Rule 46(A)(8)(a) The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.
[38] Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008).
[39] Foster v. Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990) (citation omitted).
[40] Ind. App. Rule 46(A)(4)
[41] Ind. App. Rule 49(A)
[42] Ind. App. Rule 50(A)(2)(f)
[43] Ind. App. Rule 46(A)(6)(a)
[44] Ind. App. Rule 46(A)(8)(b)
[45] Ind. App. Rule 46(A)(8)(a)
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Friday, March 13, 2015
Indiana Appellate Rule 9(A): Timeliness of Notice of Appeal - A primer for attorneys and pro se litigants on the recent opinions for saving a late appeal from jurisdictional dismissal
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