Summary 2007 WY 50

Summary of Decision issued March 21, 2007

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Case Name: Frenzel v. State, DFS

Citation: 2007 WY 50

Docket Number: 06-163

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge

Representing Appellant (Petitioner): Paul Albert Frenzel, pro se.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jacob L. Brooks, Assistant Attorney General; and Dan Wilde, Senior Assistant Attorney General.

Facts/Discussion: Appellant, an inmate at the Wyoming State Penitentiary, appealed from an order of the district court denying his petition to modify a child support and to grant him a reduction in the amount of his child support obligation arrearage.
A Judgment and Order of Paternity and Support was entered in the district court on January 20, 1994. On October 17, 2005, Appellant filed a petition to modify child support, a motion to modify child support arrearages and an affidavit of indigency in which he stated he was financially unable to pay filing fees. Appellant’s unsworn brief alleged that the district court granted his motion for leave to proceed in forma pauperis in the district court, but no such order appeared in the record on appeal. The petition and motion were set for hearing on April 12, 2006. There was a note in the record that the hearing would be by telephone but Appellant failed to appear. On May 23, 2006, Appellant attempted to file a notice of appeal from the April 27, 2006 order. He sought waiver of the filing fee. The Clerk declined to file the notice of appeal on the ground that Appellant was not entitled to in forma pauperis status in the appeal of a child support modification order. Appellant later paid the docketing fee and filed the notice of appeal on July 10, 2006. Three rules of appellate procedure apply: W.R.A.P. 1.03; W.R.A.P. 2.01(a) and W.R.A.P. 2.09(a).

Holding: The record left no doubt that Appellant did not pay the docketing fee or produce an order allowing him to proceed on appeal in forma pauperis when he attempted to file notice on May 23, 2006. W.R.A.P. 2.09(a) provides that the docketing fee shall be collected, so the district court clerk acted properly in refusing to file the notice of appeal. When Appellant did pay the fee and file his notice of appeal, more than thirty days had passed since the entry of the order being appealed. Thus being untimely, the Court did not have jurisdiction to hear it.

Dismissed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yosd2w .