ILNews

Court clarifies rules relating to filing deadlines

Back to TopCommentsE-mailPrintBookmark and Share

Filing deadlines are important for attorneys in any case.

But some recent confusion in a child custody appeal brought to light some uncertainty about how the state’s appellate rules compute some of those deadlines when “non-business days” or “calendar days” are applied to the motions practices before the Court of Appeals and Supreme Court.

The Indiana Supreme Court issued an order Jan. 14 that delves into those issues and offers some guidance for attorneys whose court filings may hinge on a single day when determining if they’re timely or not.

Justices issued the order in the case of Allan C. Bir v. Cynthia Bir, No. 06A01-1009-DR-449, which involves a post-divorce child custody dispute that’s on appeal before the Indiana Court of Appeals. The father had filed an emergency request for transfer in November, and the mother on Dec. 10 filed her response to that request.

But following that, Allan C. Bir and his attorneys sought leave to file a reply in support of the earlier motion for emergency transfer and that’s where the appellate rules overlapped and created confusion for the attorneys representing the father.

The mother filed the document Dec. 10, and the father filed a reply request on Dec. 21 – one day past the date the clerk’s office determined was the deadline according to the Indiana Appellate Rules 25 and 34(D).

Determining the father’s reply was untimely, the clerk’s office refused to file it but the attorneys then asked for permission to file a belated document in the case. The rules at issue are 25(C) regarding an automatic extension of an “additional three days from the date of deposit in the mail or with the carrier,” as well as 25(B) that discusses computing time as “non-business days” and 34(D) which says replies must be filed within five days of service of the response.

Specifically, the attorneys for Allan Bir questioned whether “non-business days” or “calendar days” should be applied to the deadlines in this case.

“Appellant contended that the rule was unclear on this point and, therefore, he should be permitted to file his motion belated if the Clerk’s interpretation of the rules was correct,” the Supreme Court order says. “Appellant’s counsel also suggested that ‘[i]t would be a great benefit to appellate practitioners for this Court to issue a published order clarifying the operation of Rules 25 and Rule 34(D).”

Following that suggestion, the court published the order that clarifies how 25(B) and (C) operate and relate to determining a due date on a Rule 34(D) motion. Justice Steven David didn’t participate in the matter as he’d handled the child custody issue at the trial level when still on the Boone Circuit bench.

“Specifically, when a response to a motion is served by mail, three calendar days are immediately added to the service date per Appellate Rule 25(C)…,” the court wrote. “The five non-business days expressed in Rule 34(D) are then counted from that third calendar day if it is a business day, or are counted from the next business day if the third day of the 'additional three days' falls on a non-business day.”

As applied to the Bir case, the justices determined that the clerk’s office correctly interpreted the appellate rules and refused to file the reply. But it granted the belated document filing as a result of the confusion.

Ultimately, the court declined the emergency transfer request in this case and left jurisdiction with the Indiana Court of Appeals.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

ADVERTISEMENT