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Father’s appeal dismissed as untimely

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A Madison County father challenging the denial of his petition for change of custody did not timely file his appeal, so the Indiana Court of Appeals dismissed it.

In D.C., Jr. v. C.A., J.D.A. and B.A., 48A05-1305-JP-265, father D.C. Jr. appealed the order from Madison Circuit Court denying his petition for change of custody of his son, C.C., with whom he shared joint legal custody with C.C.’s maternal grandparents.  

The denial of the petition was signed Jan. 17, 2013. The father was granted an extension – until March 31 – to file his memorandum in support of his motion to correct error, which he timely filed on Feb. 8. The grandparents didn’t respond to father’s motion, and the motion was deemed denied pursuant to Ind. Trial Rule 53.3. Father filed his notice of appeal May 30.

Since the trial court did not set the motion for a hearing, it would have been deemed denied 45 days after it was filed, which would have been March 25, so father’s notice would have been due April 24.

“Assuming without deciding that the trial court order granting Father’s Motion for Extension to file the supporting memorandum also extended the deadline by which it must rule on the Motion to Correct Error to the extent permitted under Trial Rule 53.3(D), the new deadline for ruling would have been April 24, 2013. When the trial court failed to rule by such date, Father’s Motion to Correct Error was deemed denied and his Notice of Appeal would have been due May 24, 2013,” Judge James Kirsch wrote.

Since D.C. Jr. did not file his appeal until May 30, it was outside either due date mentioned by the court. Since a timely filing is a prerequisite for jurisdiction, the Court of Appeals does not have jurisdiction over his appeal.

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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