Opinion
No. 02A03-8903-JV-103.
December 15, 1989.
Appeal from the Superior Court, Allen County, William L. Briggs, J.
T.M., Brooklyn, Neb., pro se.
James M. More, Fort Wayne, for appellee.
Appellant, T.M., seeks transfer to reinstate his appeal which the Court of Appeals treated as untimely. We grant transfer and remand this cause to the Court of Appeals for disposition on the merits.
This appeal arose from an order modifying T.M.'s child support obligations. T.M. is an attorney living in Brooklyn, N.Y., who has represented himself on appeal. He timely filed his motion to correct errors on November 21, 1988. The trial court denied the motion on February 6, 1989. T.M. timely filed his praecipe on March 3, 1989.
On May 24, 1989, T.M. filed a "Motion for Extension of Time" which alleged that the Record of Proceedings had been due May 8. The motion alleged that various delays, including some over which he had no control, had prevented T.M. from filing the record by May 8. The motion asked that T.M. be allowed to file the record on or before June 1, 1989.
The Court of Appeals denied the motion on May 30. T.M. tendered the record for filing on June 1. The Court of Appeals treated the record as untimely and refused to accept it for filing. The Court of Appeals also denied T.M.'s petition for rehearing which alleged that T.M.'s delay in tendering the record was excusable.
In his petition to transfer, T.M. asks this Court to reinstate his appeal because the filing of his record of proceedings on June 1 would have been timely under the February 16 amendments to the Indiana Rules of Appellate Procedure. He concedes that he heretofore has not relied on the February 16 amendments. However, he contends such conduct was justifiable because a copy of those amendments allegedly was not available to him in New York until after he filed his petition for rehearing.
This Court finds that T.M. did tender his record on a timely basis under the February 16 amendments, although the record would have been untimely under the rules as they existed before those amendments. On February 16, this Court amended Appellate Rule 3(B) to read in relevant part:
(B) Time Within Which the Appeal Must Be Submitted
In all appeals and reviews, except those from interlocutory orders, the record of the proceedings must be filed with the clerk of the Supreme Court and Court of Appeals within ninety (90) days from the date the praecipe is filed.
T.M. filed his record on June 1, 90 days after the March 3 filing of his praecipe.
While T.M.'s compliance with the jurisdictional deadlines was inadvertent, it was nonetheless effective. A case on appeal should be considered on the merits whenever possible. State v. Heslar (1972), 257 Ind. 625, 277 N.E.2d 796.
This cause is remanded to the Court of Appeals for briefing and disposition on the merits.