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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowFiling 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.
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