Opinion
23A-DC-1992
09-18-2024
Jessica Robinson, Appellant-Defendant v. Timothy Noble, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Kristin Szczerbik Szczerbik Law Cloverdale, Indiana. ATTORNEYS FOR APPELLEE Andrew C. Mallor Kendra G. Gjerdingen Mallor Grodner LLP Bloomington, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Floyd Circuit Court The Honorable Terrance Cody, Sr., Special Judge Trial Court Cause No. 22C01-1806-DC-0471
ATTORNEY FOR APPELLANT Kristin Szczerbik Szczerbik Law Cloverdale, Indiana.
ATTORNEYS FOR APPELLEE Andrew C. Mallor Kendra G. Gjerdingen Mallor Grodner LLP Bloomington, Indiana.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Jessica Robinson ("Mother") appeals a trial court order modifying custody of her and Timothy Noble's ("Father") children and ordering Mother to pay Father some of his attorney fees. She raises two issues on appeal; however, we address only the dispositive issue of whether Mother's appeal should be dismissed as untimely. Finding that it should, we dismiss.
Facts and Procedural History
[¶2] The parties' marriage was dissolved in 2019, and Mother was granted physical custody of their two children, M.N. and E.N. ("Children"), with Father having parenting time. In February 2021, Father filed a petition to modify custody, and, in August 2021, the trial court entered the parties' Agreed Modification Order under which Mother retained primary physical custody of Children with restrictions on her then-boyfriend's, Jerome Robinson's ("Robinson"), access to Children. Mother subsequently married Robinson and allowed him to live in her home with her and Children, in violation of the agreed custody order. Soon thereafter, Father filed a Rule to Show Cause and Emergency Petition for Modification of Custody, seeking sole custody of Children.
[¶3] The trial court held a hearing on Father's motions and interviewed Children in camera. On January 17, 2023, the court issued its Order of Modification, which it amended on February 20. The order and amended order modified custody, with Father having primary physical custody of M.N. and Mother having parenting time, and Mother having primary physical custody of E.N. and Father having increased parenting time with E.N. The court also found that Mother had knowingly violated the order restricting Robinson's access to Children. Although the court declined to issue a contempt order as to Mother, it ordered Mother to pay the attorney fees Father incurred in pursuing the petition to modify custody and rule to show cause.
[¶4] After the trial court issued its initial custody modification order on January 17 but before it issued its amended custody modification order on February 20, Mother filed a Motion to Correct Error on February 16, 2023. The trial court did not set Mother's Motion to Correct Error for a hearing within forty-five days, and neither party appealed the February 20 amended custody modification order within thirty days. On June 1, 2023, Father filed a motion for the trial court "to convene a hearing on all pending matters." App. at 130. On July 26, 2023, the trial court held a hearing on Mother's February 16 Motion to Correct Error and denied the same. Mother filed the ensuing appeal on August 25, 2023, indicating in her Notice of Appeal that her motion to correct error had been "denied" by the trial court on "July 26, 2023." Notice of Appeal.
On February 14, Father also filed a Motion to Correct Scrivener's Errors in the January 17 order. The court granted Father's motion and corrected the scrivener's errors in its February 20 amended order.
Discussion and Decision
[¶5] Father contends that Mother's appeal must be dismissed because she failed to timely file her Notice of Appeal. Indiana Appellate Rule 9(A) requires that an appeal be initiated by filing a Notice of Appeal within thirty days after either the entry of a final judgment or, if a motion to correct error is filed, within thirty days of the denial of the motion or the date the motion is deemed denied.
Indiana Trial Rule 53.3 provides that motions to correct error "shall be deemed denied" if a trial judge fails to rule upon it "within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required...." Ind. Trial Rule 53.3(A). The denial to which Rule 53.3 refers is automatic; that is, "it is self-activating upon the passage of the requisite number of days." Bridges v. Veolia Water Indianapolis, LLC, 978 N.E.2d 447, 453 (Ind.Ct.App. 2012) (internal quotation and citation omitted), trans. denied. However, the time limits for ruling on a motion to correct error may be extended by an entry the trial court files in the cause and about which all parties are advised, T.R. 53.3 (B)(2) and (D), or the time limit may not apply if the parties "stipulate or agree on record" that the time limits do not apply, T.R. 53.3(B)(1) (emphasis added).
[¶6] When a party fails to file a Notice of Appeal within thirty days after the hearing of a motion to correct error or forty-five days after the motion is filed, that party forfeits his or her appeal. See, e.g., D.C., Jr. v. C.A., 5 N.E.3d 473, 477 (Ind.Ct.App. 2014) (internal quotation and citation omitted) ("The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal.") Moreover, the failure of the trial court to act within the time prescribed by Trial Rule 53.3 "extinguishes the [trial] court's authority to rule on the motion[,] and any subsequent ruling is a nullity." Johnson v. Johnson, 882 N.E.2d 223, 226-27 (Ind.Ct.App. 2008) (internal quotation and citation omitted), superseded by statute on other grounds as stated in Campbell v. George, 77 N.E.3d 816 (Ind.Ct.App. 2017); see also Garrison v. Metcalf, 849 N.E.2d 1114, 1115 (Ind. 2006) (holding that a party's motion to correct error was deemed denied on the thirtieth day following the hearing on the motion, despite the trial court's belated attempt to grant the motion six days after the deadline had passed).
[¶7] Here, Mother filed her Motion to Correct Error on February 16, 2023. The trial court did not set the motion for a hearing within forty-five days, neither party appealed the February 20 amended custody modification order within thirty days, the trial court did not enter an order extending the Rule 53.3 time limits, and the parties did not agree on the record that the time limits did not apply. Therefore, Mothers' motion to correct error automatically was deemed denied on April 3, 2023, at which point the trial court lost its authority to rule on the motion, and Mother's thirty-day time limit to perfect her appeal began to run. Mother did not file her Notice of Appeal within that time limit. Therefore, she has forfeited her appeal.
Mother's assertion-unsupported by citation to any legal authority-that Father acquiesced to an expanded time frame to rule on her motion to correct error by failing to object to the untimely July hearing on that motion is unfounded. The trial rule clearly requires that the parties "stipulate or agree on record" that the time limits do not apply, and that did not happen here. TR 53.3(B)(1). Nor was there any need for Father to "appeal [the] belated ruling" on Mother's motion, Reply Br. at 6, as that ruling was a nullity, see Johnson, 882 N.E.2d at 226-27.
Conclusion
[¶8] Because Mother did not file her Notice of Appeal within thirty days of the date her motion to correct error was deemed denied, she forfeited her appeal.
[¶9] Dismissed.
Kenworthy, J., and Felix, J., concur.