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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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