Friday, April 11, 2014

Is the relationship with your child worth following the Indiana Rules of Appellate Procedure?

When it comes to neglect of children I am not hesitant to bluntly provide an assessment which holds parents accountable. I have previously made such bold assertions as some non custodial parents should be and that parents induce the sexual abuse of their children. As I recently read another Domestic Relations opinion from the Indiana Court of Appeals which was dismissed for lack of compliance with the rules I wondered if these parents actually care. I read every opinion of Indiana's higher courts that relate to the custody, parenting time, and support of children. Lately I have noticed a surge in dismissals and deficiencies that result in the merits of cases not being heard.

The recent Shane v Shane in which David Shane appealed the trial court’s denial of his petition to eliminate his child support arrearage or to modify the trial court’s income withholding order was dismissed for want of jurisdiction. Although his daughter had died seven years earlier and support payments were terminated he still had a considerable arrears. He sought to have that arrears discharged through writing a letter to the court. The trial court denial the request the following day, 18 July 2013, which was noted in the Chronological Case Summary (“CCS”) that same day. On August 26, 2013, thirty-nine days after the entry of the July 18 order in the CCS, Shane filed his notice of appeal.

At the outset the Court noted that “Shane did not timely file his notice of appeal. As such, we are without jurisdiction to consider Shane’s arguments.” This is because Indiana Appellate Rule 9(A)(1) provides that “[a] party initiates an appeal by filing a Notice of Appeal with the Clerk . . . within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary.” Article 7, Section 6 of the Indiana Constitution expressly declares that the Court of Appeals “shall exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules . . . .” “This court’s subject matter jurisdiction is specified by the Indiana Rules of Appellate Procedure adopted by our Supreme Court.” 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. Thus, the appellate court lacks jurisdiction to hear an appeal which was not timely filed. 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.” Greer v. State, 685 N.E.2d 700, 703-04 (Ind. 1997).

It is not Shane's untimely filing that concerns me most. Rather, it was just the latest in a series of dismissals for failure to comply with the rules. The case that I will focus on here is Bridgford v Bridgford which was decided on 08 October 2013. Although Bridgford filed a timely Notice of Appeal it was because “Bridgford has failed to substantially comply with the Indiana Rules of Appellate Procedure”, that the Court must dismiss his appeal. Bridgford's Appellant's Brief and subsequent dismissal is instructive and comprehensive in the complete absence of compliance with the rules.

To begin with pro se litigants such as Shane and Bridgford are held to the same standard as trained attorneys. A pro se litigant “cannot take refuge in the sanctuary of his amateur status.” Peters v. Perry, 873 N.E.2d 676, 677 (Ind. Ct. App. 2007). “As we have noted many times before, a litigant who chooses to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of his action.” Id. at 678. Likewise, 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.” Foster v. Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990). When a party elects to represent himself, there is no reason for us to indulge in any benevolent presumption on his behalf or to waive any rule for the orderly and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).

So let's just get into the deficiencies in Bridgford's brief and the applicable rules which he failed to follow. To begin with, the seven issues listed in the statement of issues section of Bridgford’s brief are not concise, as required by Appellate Rule 46(A)(4), are improperly argumentative, and are not addressed in any logical sequence, if at all, in the argument section of the brief.

The linguistic deficiencies continue. Bridgford’s statement of facts does not contain a single citation to the record on appeal, as required by Appellate Rule 46(A)(6)(a), and thus is essentially an unsubstantiated account of the proceedings from his perspective. The facts are only facts because they are found in the record. The Court may not search the record as that would make them an advocate building a case for a party. Rather the parties have the burden to direct the Court to the portion of the record that supports the statement. “On review, we will not search the record to find a basis for a party’s argument, nor will we search the authorities cited by a party in order to find legal support for its position.” Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997). Bridgford’s argument does not contain a “concise statement of the applicable standard of review,” as required by Appellate Rule 46(A)(8)(b), and his contentions are not “supported by cogent reasoning,” as required by Appellate Rule 46(A)(8)(a). The standard of review is essential to establishing for the Court the frame of mind in which they must critique the trial court's judgment. I recently wrote another scathing rebuke of appellate practice in Why a Competent Attorney is a Must or How to Stay in Prison in which it was a trained attorney who was unable to comply with the most basic of the rules. In that opinion the Court cited Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (noting that failure to comply with Indiana Code Appellate Rule 46(A)(8)(b), which requires that an appellant’s brief include a statement of the applicable standard of review for each issue, results in waiver of that issue for appellate review).

There were also substantial structural deficiencies. Bridgford failed to file an appellant’s appendix, as required by Appellate Rule 49(A). He failed to include a copy of each motion subject to the appeal which violates Appellate Rule 50(A)(2)(f). To fail to include the required materials is inexcusable neglect. The Rules of Appellate Procedure provide a detailed listing of what must be included. It's like following the directions for making pancakes by including the proper ingredients. It may get more challenging when cooking comes into play, similar to providing cogent reasoning. Cogent reasoning simply means that a claim must be logically related to the evidence. Likely, we all learned cogent reasoning as children in a manner similar to what I provide here.
We touch the stove top and don't get burnt. While someone cooks something we touch the heat source and get burnt. When the heat source is turned off and the pan is removed we touch the stove top and get burnt. Hours later we cautiously touch the stove top but do not get burnt. Thus, we conclude through cogent reasoning that the heat source can burn us, but, it being on also raises the temperature of the stove top which can burn us. Additionally, the temperature receding is not instantaneous and even after the heat source is turned off we can still get burnt by touching the stove top.

Here are some excerpts from an Appellant's Reply Brief filed by a pro se litigant whom I taught how to write an appeal. The Appellee was represented by an attorney.

Appellee argues that Appellant failed to timely or appropriately request Special Findings pursuant to Ind. T.R. 52(A). Appellee’s argument misinterprets the rule, ignores and omits salient facts, and obfuscates the discourse between the parties and the Court surrounding this issue.
Appellee’s Brief states that Judge “did not grant Father’s request but instead noted it.” Appellant acknowledges and agrees that Judge said she “noted” it. However, Appellee omits and Appellant contends that Judge’s statements on the issue immediately following reflects the true nature of the request and is that which this Court should consider as it is the substance not form of the colloquy which controls.
RESPONDENT: Uh - yes, Your Honor. I would like to request – um – Trial Rule 52(A) Special Findings and Conclusions in today's hearing please.
THE COURT: Alright, very good. Court will note that. Uh – at the conclusion of evidence today we will determine a date wherein the parties can submit their proposed findings of fact and conclusions of law. I will take the matter under advisement. And – uh – will make that determination. Other preliminary matters?
RESPONDENT: I think that's it.

Clearly the Respondent timely made a TR52A request and that the judge did more than note it. But it gets better. Much of Appellee's argument was based upon the contention that the Court's findings should be considered sua sponte [as though the Court provided them on it's own motion] as Appellant did not properly request Special Findings in compliance with Ind. Tr. Rule 52(A). This is a critical distinction as explained by the Court of Appeals in a case here the trial court entered findings sua sponte. “In such a situation, the specific factual findings control only the issues that they cover, while a general judgment standard applies to issues upon which there are no findings. C.B. v. B.W., 985 N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied.” This distinction is important because of the relative Standard of Review. “The trial court in this case entered findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we determine whether the evidence supports the findings and, second, whether the findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213 (Ind. 2012). We view the evidence in the light most favorable to the judgment and defer to those findings if they are supported by the evidence or any legitimate inferences flowing therefrom. Id.” Under a general judgment standard of review the reviewing court need only to determine whether the trial court's ruling can be supported under any legal theory.

So here is where it gets good. The attorney, Jonathan Deenik, argued that the Court only “noted” Respondent's TR52A request and therefore a general judgment Standard of Review should apply. The following colloquy aptly dispels Deenik's false claim.

THE COURT: Very good. All right. Thank you, sir. Let's take care of some procedural issues. So the first is both of you have requested to do findings, which I'm grateful. And so what do you think? How long to get your findings to me?
MR. DEENIK: Can I take a look at the calendar?
THE COURT: Absolutely, please.
MR. DEENIK: I could have them ready by the 22nd, Your Honor, which is a Monday.
MR. DEENIK: April.
THE COURT: Well, that's quick. What do you think, Mr. Moore?
RESPONDENT: I think your assessment that that's quick is kind of right. I mean, remember this stuff is a lot harder for me to do. I mean, I was thinking more like 30 days.
MR. DEENIK: I don't have an objection to that, Your Honor.[emphasis added]

Not only does Deenik not have an objection to the 52A request but the Court noted that he also made the same request which he argued upon appeal was not properly made and was only “noted.” His complete lack of cogent reasoning was aptly demonstrated by my client.

Like in Bridgford the father in Sovinski v Sovinski made similar egregious errors. There the appellate panel had this to say.

Father did not file an appendix, as required by Ind. Appellate Rule 49(a), to provide us copies of the parts of the record that would help us review the issues he raised. Nevertheless, Father attached multiple items to his Notice of Appeal that were not admitted into evidence before the trial court. We are not permitted to review items that were not before the trial court. Shafer v. Lambie, 667 N.E.2d 226, 231 (Ind. Ct. App. 1996) (matters outside the record cannot be considered by the court on appeal).
Nor did he heed the requirements of App. R. 46(A)(8)(a), which states: “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 authorities, statutes, and the Appendix or parts of the Record on Appeal relied upon[.]” Failure to present a cogent argument results in waiver of the issue on appeal. Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999). Father’s brief contains no citation to the record or transcript. Additionally, he cites no case law or statute to support his contentions.
Because Father’s failure to follow the Indiana Rules of Appellate Procedure has made it impossible for us to address the issue he raised, Father’s arguments are waived. See, e.g., Viccaro v. City of Fort Wayne, 449 N.E.2d 1161, 1162 n.1 (Ind. Ct. App. 1983) (court will, at its discretion, waive issues when parties commit flagrant violations of the Indiana Rules of Appellate Procedure). Accordingly, we affirm the judgment of the trial court.

Pro se litigants can effectively perfect the appeal process as demonstrated in Dillman v Dillman last year where both parties represented themselves and the appeal was decided on the merits. The Court did not have to issue any admonishments for rule violations to either pro se party.

Contrarily though the panel in Bridgford v Bridgford concluded “Bridgford has failed to comply with the appellate rules in many other respects, but the foregoing examples are sufficiently substantial to warrant the dismissal of his appeal. Therefore, we dismiss.”

In Griebel v Griebel the panel stated, “Father articulates no specific issue for review but requests several modifications of the order. Without a transcript or statement of evidence, we lack a basis for review of Father’s general contentions as to factual error. We dismiss.

As I have demonstrated here cogent reasoning is not a difficult concept with which we are unfamiliar. The Indiana Rules of Appellate Procedure provide the instructions on formatting an appeal. It then becomes a matter of a parent determining whether he or she wishes to dedicate the time necessary to read and comply with the rules. As I have previously said in Why some parents are non custodial and should be if a parent isn't willing to expend the effort to follow the instructions on appeal then is this parent likely to hold the needs of his or her child in high regard?

Neglecting the rules in a child custody appeal is tantamount to neglecting the child. If you would like to learn how to perfect your own appeal then please review this page and contact my scheduler.

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