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.




Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017          Page 1 of 8
                                          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


      Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017   Page 2 of 8
      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.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017                Page 3 of 8
[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:

       Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017   Page 4 of 8
               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.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017   Page 5 of 8
[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


       Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017   Page 6 of 8
       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.


       Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017                Page 7 of 8
[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.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1612-JP-2929 | May 31, 2017   Page 8 of 8
