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COA reverses child support modification despite untimely appeal

April 13, 2017

Despite a father’s untimely filing of an appeal, the Indiana Court of Appeals decided to reverse a child custody modification order, finding there was an “extraordinarily compelling reason” to consider the father’s case on its merits.

In Charles Cannon v. Kristy A. Caldwell, 89A01-1607-DR-1643, Kristy Caldwell was granted custody of her two children with Charles Cannon, who was ordered to pay $20 per week in child support. Additionally, the children received a monthly derivative benefit of $93 each from Cannon’s Social Security Disability, for a total of $266 per month.

However, when Cannon became ineligible for SSD and began receiving Social Security Income of $773 per month instead, the children stopped receiving derivative benefits, so Caldwell filed a motion to modify child support. The Wayne Superior Court subsequently modified Cannon’s child support obligation to $35 per week on May 27, 2016, then denied his motion to reconsider on June 29.

Then on July 21, Cannon filed a notice of appeal. On appeal, he argued that the trial court erred in ordering him to pay child support because SSI does not constitute income for purposes of calculating child support obligations.

Indiana Court of Appeals Judge Terry Crone initially noted in a Thursday opinion that although Cannon filed a motion to reconsider on June 2016, the 30-day window for a notice of appeal began when the child support order was modified on May 27. Thus, his July 21 notice of appeal was untimely.

However, Crone further wrote there was an “extraordinarily compelling reason” to consider Cannon’s untimely appeal on its merits – the “obvious injustice” of using Cannon’s SSI to modify the child support order.

“(The) Indiana Child Support guidelines specifically provide that means-tested public assistance programs, including SSI, are excluded from the definition of weekly gross income used to determine a parent’s child support obligation,” the judge wrote.  “… Thus, the child support modification order setting Father’s child support at $35 per week is on its face in clear violation of Child Support Guidelines.”

The case was remanded for the reversal of the child support modification order.

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