In Shelton v. Shelton, Mr. Shelton filed a motion to modify child custody payments. The alleged material change in circumstances was that "he lost his job [earning $16.55 per hour] after pleading guilty to a sex crime, that he was serving one year in jail with work release, and that he was currently employed earning $6.25 per hour." The trial court dismissed the motion pursuant to I.R.C.P 12(b)(6). The Supreme Court dismissed Mr. Shelton's appeal because the Notice of Appeal was filed one day too late. However, it noted that the motion could be refiled in the trial court as it was dismissed without prejudice. The Court then addressed some issues which might arise if such a motion was filed.
The issue of interest here is that the trial court dismissed Mr. Shelton's motion "because he had failed to offer at the hearing admissible testimony supporting his contention that there had been a substantial and material change in circumstances justifying a modification of the child support." However, "[t]here is no requirement that a party defending against a 12(b)(6) motion must offer admissible testimony at the hearing on the motion" and the trial court should not have dismissed on the failure to do so.
Here comes the useful language:
"The first issue is that all litigants, including those such as Father who are incarcerated for reprehensible conduct, are entitled to equality under the law. Not only is a pro se litigant held to the same standards and rules as an attorney, but the pro se litigant is entitled to have the rules of civil procedure applied to him or her in the same manner as they would be applied to an attorney. In this case, the magistrate judge did not do so. He created a unique procedural hurdle that Father tripped over, resulting in the dismissal of his motion." (Citations omitted, emphasis added.)
While it is not pertinent to my practice, I understand that some SCOIDBlog readers have, on occasion, represented people who are accused of/have done reprehensible things. For those readers, this language can be used as a reminder to our trial courts that we are all entitled to the equal protection of the laws.
Shelton v. Shelton, http://www.isc.idaho.gov/opinions/Shelton%20v.%20Shelton.pdf