      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


      Court of Appeals of Indiana | Opinion 89A01-1607-DR-1643 | April 13, 2017                    Page 1 of 8
      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

      Court of Appeals of Indiana | Opinion 89A01-1607-DR-1643 | April 13, 2017   Page 3 of 8
      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.

      Court of Appeals of Indiana | Opinion 89A01-1607-DR-1643 | April 13, 2017     Page 4 of 8
       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.

       Court of Appeals of Indiana | Opinion 89A01-1607-DR-1643 | April 13, 2017        Page 7 of 8
       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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