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In re Parenting of G.J.A.

Supreme Court of Montana

October 22, 2013

IN RE THE PARENTING OF: G.J.A., A Minor Child JEREMY J. ANDERSON, Petitioner and Appellant, and CHRISTINE R. DEAFENBAUGH, Respondent and Appellee.

ORDER

Jeremy J. Anderson (Jeremy), currently self-represented, has filed a verified petition with documentation in support of his motion to file an out-of-time appeal from a Cascade County District Court order affirming a standing master's findings of fact, conclusions of law and judgment and established a parenting plan and child support for the parties' six-year-old son. The order was entered on August 29, 2013, and Christine R. Deafenbaugh (Christine) filed a notice of entry of judgment on August 30, 2013. Christine, through counsel, has filed a response opposing the petition.

Jeremy was represented by counsel before the standing master and in the District Court. Jeremy states that his trial counsel provided him with a copy of the decision on August 30, and acknowledges that she did not recommend that he appeal. However, his counsel did not file an appeal, withdraw as counsel of record, provide a copy of the notice of entry of judgment, or explain that the notice triggered the running of the 30-day appeal time. Jeremy states that, on October 2, he learned that the notice of entry of judgment had been entered on August 30, and that the appeal time had been triggered, making the appeal due on or before September 30, 2013. He states that he acted immediately to file his appeal on October 4.

In the event that his motion is granted, Jeremy states he is prepared to retain Jason T. Holden of Faure Holden, Attorneys at Law, to represent him on appeal. He intends to argue that the District Court Judge based her decision on an "erroneous standard of review of the Standing Master's Decision and faulty evidence." If this petition is denied, he states that he has no other recourse as his son is residing in Minnesota with Christine, and he previously persuaded the Minnesota Court that Montana was the child's home state that should decide this matter. He notes his appeal is filed only several days late.

Christine argues that this is the child's first full-time school year residing with her. While Jeremy is clearly disappointed in the District Court's decision, she asserts that his purported justification does not rise to the level of a gross miscarriage of justice required by the rule governing out-of-time appeals. Christine argues that the petition for an out-of-time appeal is a burden upon her financial resources, and requests that she be granted her costs and attorney fees in defending against the motion.

An out-of-time appeal is available only when "extraordinary circumstances amounting to a gross miscarriage of justice" are established by a verified petition, supporting affidavits, records and other evidence. M. R. App. P. 4(6). We note that Jeremy has ordered the transcript and lodged the filing fee for the appeal.

We conclude that Jeremy's circumstances constitute more than mere inadvertence, as Christine argues, and that Jeremy should be able to pursue an appeal to present his arguments. So holding, we need not address Christine's request for costs and fees, and we note that her counsel has now withdrawn. Therefore,

IT IS HEREBY ORDERED that the petition for an out-of-time appeal is GRANTED.

The Clerk is directed to provide a copy hereof to the respective parties.


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