Just Because There is a Law

Everyone should read Lesson Learned From Case of Child Abducted to Brazil and Retained for Five Years: An International Convention is Only As Good as Its Enforcement Mechanism from Florida Divorce * Child Custody * Domestic Violence Law Lawyer for more than its obvious topic:

Yet, in a recent case there, the Indian Supreme Court ruled that an Indian Wife who had been permanently residing in the UK with her Husband and their child, must return to the UK with their child for custody proceedings there.

Ultimately, the adverse impact of Brazil’s conduct on future trade with the US may have propelled Brazil to finally send the boy home.

Now, a Congressman from that boy’s home state, New Jersey, has introduced legislation intended to promote enforcement of the Hague Convention by appointing an official to monitor compliance and to empower the government to impose sanctions for noncompliance.

Enforcement falls down for two reasons: 1) the parties think someone else will enforce their court order; or 2) the court itself does not do as it should. The Brazil case falls in the second category.

Without a person taking action a court order remains only paper.

When one of our courts go off into the weeds, the remedy is an appeal.

A statute is only as good as its enforcement mechanism.

Appeals - Some General Thoughts

Having dissected Vandenburgh v. Vandenburgh the past few days, I wanted to make a general comment for the non-lawyer readers who come through here. Read this opinion to see how technically difficult it is to prepare an appeal even if the person doing the preparation is a lawyer. Doing an appeal without a lawyer is not something to try lightly.

Indiana Family Law Resources

I am not sure how many readers take a look at the sidebar because some seem to miss a collection of links I have under the heading of Indiana Family Law Resources.

When I created this list, my thought was to create a mini-portal for the most important sources for Indiana family. That does not work very well if no one notices that the information is here.

Nor is it really much use to those using RSS feeds or who have an e-mail subscription.

Every parent should bookmark the first three links.

• Indiana's Parenting Time Guidelines
• Indiana Child Support Guidelines
• Indiana's Online Child Support Calculator
• Indiana Trial Courts and Clerks
• Indiana's Family Law and Juvenile Law Code
• Indiana Rules of Trial Procedure
• Indiana Rules of Appellate Procedure

If you are looking for a specific trial court, then go to Indiana Trial Court and Clerks. This page is maintained by our Indiana Supreme Court. Find the county and this will take you a page showing contact information for each court in a county, the judge's name, a map to the courthouse, and a link to the county's local rules.

Indiana's Family Law and Juvenile Code takes you to Title 31 of the Indiana Code. Here you will find the statutes on marriage, annulment, divorce, parenting time, custody, paternity. child support, and more.

The Indiana Rules of Trial Procedure contains all the rules needed in handling a case procedurally (as opposed to the substance found i the Guidelines and statutes). Not all apply to family law - such as anything dealing with jury trials - but these need knowing for trying a case and they apply in all counties.

Indiana Rules of Evidence are those rules about what is relevant evidence and how we get that evidence before a court. Don't follow these and you do not get your case made.

Indiana Rules of Appellate Procedure are the rules on how to create and handle an appeal in Indiana's Court of Appeals and Supreme Court.

Well, I hope this helps. Bookmark the specific sites or come back here - these will be here.

How Indiana Organizes Its Courts

It seems that many people do not know or understand how Indiana organizes its courts.  Indiana has three levels for its courts.

Trial Courts:

Most people understand about trial courts. The divorce or paternity case gets heard by a trial court judge (or the commissioner appointed by the trial judge).  The Indiana Courts web site maintains a portal for Indiana trial courts here.

The Indiana General Assembly sets out by law the organization of each county's court system.

Trial courts will either be Circuit Courts or Superior Courts.  These courts also generally have a civil docket (by which I mean suits for money and family law) and a criminal docket.  I know that Marion County has divided its Superior Courts into those handling only civil cases and those handling only criminal cases.

Because of the workload imposed on the courts, most judges appoint commissioners to handle family law cases.

It is worth remembering that in Indiana most counties still elect their judges (which is not true in all states).  Call that another good reason to vote.

We are also starting a family court program.  So far only twenty-two of our ninety-two counties have joined in this program.  These courts are either Superior or Circuit Courts that are given family court status.

Above the trial courts come the appellate courts.  If one has grounds for an appeal, then it is to the Indiana Court of Appeals that one goes and, maybe, thereafter to the Indiana Supreme Court.

The Appellate Courts:

The Indiana Supreme Court has a page, Appellate Process, describing the appellate process.  I suggest giving it a look.


For more information on the Indiana Supreme Court follow this link and here for the Indiana Court of Appeals.

For those who want to know more, or have a chance to learn or gripe more, should take a look at The challenges of state courts Sept. 9 at IU-Indy:

On Sept. 9, the Indianapolis Lawyer Chapter American Constitution Society for Law and Policy (ACS) will host a panel discussion at the IU School of Law-Indianapolis, where a distinguished panel of jurists will discuss the important matters affecting their respective courts. In addition to discussing issues such as access to justice, regulation of the legal profession, relations with the executive and legislative branches and addressing crises like foreclosure, drugs and immigration, the panel will answer questions from the audience, time permitting.
 
WHO:
• Chief Justice Thomas J. Moyer, Supreme Court of Ohio
• Chief Justice Randall T. Shepard, Supreme Court of Indiana
• Former Chief Justice Laura Denvir Stith, Supreme Court of Missouri
• Panel moderated by Prof. Cynthia A. Baker, Clinical Associate Professor
of Law & Director, Program on Law & State Government, Indiana
University School of Law-Indianapolis

Child Custody Texas: Splitting the Kids

I ran across An Unusual Case of Splitting Custody of Siblings at North Texas Family Law Blog. My first thought about the case was that it sounded like one of those horrors every family law attorney has seen once too many times. Hints of parental alienation syndrome also came to mind:

"Although the testimony at trial was conflicting, much of it concerned the mother's state of mind. The court of appeals observed:

The trial court heard evidence that all three children were harmed by their mother's paranoid delusions and by her practice of speaking ill of the father in front of the children. . . . The trial court also heard testimony from [the youngest child's] therapist that [the youngest child] needed to be immediately removed from the continuing allegations that permeated his mother's home."

My Indiana readers may wonder what this has to do with Indiana law. It appears that the Texas appellate courts do as Indiana's appellate courts do in deferring to trial courts on factual issues:

The court of appeals affirmed the trial court's decision that the father should have custody of the youngest child and the mother custody of the older two children:

Based on the evidence before it, the trial court could have reasonably concluded that [the youngest child] would face future emotional danger if he continued to live with his mother and siblings whereas [the older children] would face future emotional danger if they were removed from their mother's care, and that the only way to serve the best interests of all three children was to separate them. Therefore, we conclude that the trial court could have found clear and compelling reasons to separate the children and we overrule [the mother's] first point of error.

Many years ago I had a judge divide the children between their parents. The boys went to father and the girls to their mother. As I recall, the CASA worker made a recommendation against my client. The judge did what he wanted to do. We had were in no position to appeal but I doubt the judge would have been reversed.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Paternity - Paying the Birth Expenses in Indiana

I can only describe In Re: The Matter of the Paternity of D.J. (PDF format) as a bit odd. Usually, the issue of how much a father must pay for birth expenses does not come up. What gives this case its oddness is that the child was born in 2001 and how the trial court handled the issue of child support's start date:

After hearing the evidence on March 18, 2008, the trial court found that J.M.M. was D.J.’s father. The trial court also ordered J.M.M. to pay child support in the amount of $42 per week retroactive to February 16, 2008.

The Indiana Court of Appeals' opinion then describes how the trial court handled the issue of birth expenses:

At the time of the hearing, the deputy prosecutor indicated that although he did not presently have the evidence regarding the childbirth expenses that Medicaid had paid, that evidence was available and forthcoming. Nonetheless, the trial court ruled that “Father isn’t Ordered to reimburse the State . . . for birth expenses paid for by Medicaid due to the age of the child.” (citation omitted).

The opinion also sets out the statute at issue:

Proceeding to the merits of the State’s argument, we note that the payment of expenses associated with the birth of a child is governed by Indiana Code section 31-14-17-1:

(a) The court shall order the father to pay at least fifty percent (50%) of the reasonable and necessary expenses of the mother’s pregnancy and childbirth, including the cost of:

(1) prenatal care;
(2) delivery;
(3) hospitalization; and
(4) postnatal care.

And what about a time limit? The Court of Appeals wrote the following:

This court has previously held that Indiana Code section 31-14-7-1 imposes no time limitation on the recovery of birth-related expenses, provided that the paternity petition is otherwise timely filed. In the Matter of Paternity of A.J.R., 702 N.E.2d 355, 363 (Ind. Ct. App. 1998)....

Statute is clear. Case law is on point. Which leads me to this point: we have appeals because not every judge applies the law properly.

Indiana Appellate Opinions - For Publication and Not For Publication

I Think I need to publish a reminder about Not-For Publication cases. I touched on Not-For-Publication cases in Observations on Not-For-Publications opinions and on do-it-yourself appeals. I want to add some detail today.

After all, why if we can see them online are they called Not-For-Publication cases? Lawyers have something that trump dictionaries: court rules.

Indiana's Appellate Rule 65 defines what is a published case and what is a not-for-publication case:

A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.

The Rule also establishes the meaning of a not-for-publication case:

D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

What does this mean? It means you can look at it but it has no value as law. You can use it find cases that are law. I think that they may also have a value in showing how the law is applied to a set of facts, but that does depend on the case. I am finding more interesting reading in the NFP cases than I am finding in some of the for-publication cases.

Calculating Child Support

Time to discuss case law. Here we have a case that involves overtime and bonuses and a question about parenting time. Teresa Heath v. Timothy Heath (PDF format) is also a Not-For Publication case.

Lately, there has not been much in the way of cases for publication. For an explanation of Not-For-Publication cases, see Indiana Appellate Opinions - For Publication and Not For Publication.

Here are the important facts:

In October 2007, Father filed a petition to modify custody and child support. Father requested custody of B.H. and a modification of child support as a result. At the February 2008 hearing, Mother and Father agreed that Father would have custody of B.H. (Transcript at 3, 39) Father suggested that his child support obligation be $70.00 per week based upon his base salary, with a quarterly review of his income to determine his overtime and a supplemental payment of 12.7% of his overtime. Father also based his calculation on Mother having 52 days of parenting time with B.H. Mother suggested that Father’s child support obligation be $167.00 per week based upon his base salary with overtime and bonuses. Mother also based her calculation on 98 days of parenting time with B.H.

The trial court ordered Father to pay $70.00 per week in child support but did not order Father to conduct a quarterly review of his income to determine his overtime or order payment of 12.7% of his overtime. The trial court also ordered Mother to have parenting time with B.H., but gave a parenting time credit of 52 overnights.

Here are the important legal points:

Ind. Child Support Rule 2 provides: “In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.” Further, Ind. Child Support Rule 3 provides: “If the court concludes from the evidence in a particular case that the amount of the award reached through application of the guidelines would be unjust, the court shall enter a written finding articulating the factual circumstances supporting that conclusion.” Thus, any deviations from the Child Support Guidelines must be explained by the trial court. See, e.g., Grant v. Hager, 868 N.E.2d 801, 804 (Ind. 2007) (noting the trial court could deviate from the child support guidelines if it made the required written findings).

***

“With the adoption of the Indiana Parenting Time Guidelines, the noncustodial parent’s share of parenting time, if exercised, is equivalent to approximately 27% of the annual overnights.” Ind. Child Support Guideline 6, Additional Commentary. “If the parents are using the Parenting Time Guidelines without extending the weeknight period into an overnight, the noncustodial parent will be exercising approximately 98 overnights.” Id.

The Court of Appeals quotes extensively from the commentary to Ind. Child Support Guideline 3(A)(1) at pages 4 -5. Bonuses and overtime ought to have been included and their exclusion needs an explanation by the judge. Judge failing to explain the exclusion has the case returned to him:
Therefore, we reverse the trial court’s exclusion of the overtime and bonus income, and we remand with instructions to either calculate Father’s income as outlined in the Child Support Guidelines or, if the trial court excludes the overtime and bonuses, to issue written findings explaining the deviation.

Regarding the parenting time, the Indiana Court of Appeals wrote:

Based upon the Parenting Time Guidelines, Mother was entitled to credit for 98 overnights. Consequently, the trial court’s use of 52 overnights in calculating Mother’s parenting time credit without an explanation of the deviation was clearly erroneous. On remand, we direct the trial court to recalculate Mother’s parenting time credit in accordance with the Ind. Child Support Guidelines or explain the deviation.

Summing up: look at the Child Support Guidelines to see what income is to be included in the child support calculations, start with 98 days for visitation, and any deviation needs a written explanation by the judge.

When Reasonable Minds Differ - Appeal!

Charles Rubin of Rubin on Tax has a lovely post, SEPARATION DOES NOT EQUAL DIVORCE, about what can go wrong (and right) between writing a prenuptial agreement and a trial judge. I several lessons to be learned for various types: 1) why there are dangers in writing your own legal documents, 2) that judges can go off the rails in Florida as well as Indiana, and 3) why we must never forget that there is a Court of Appeals.

Here is the issue:

A husband and wife enter into a prenuptial agreement. The agreement provides that it continues to apply even through "separation and reconciliation." Instead of separating and reconciling, the couple divorces and remarries. The issue arises whether the agreement continues to apply to the new marriage.

This was the issue in a recent Florida case, where after remarriage the husband died, and the wife sought to exercise property rights she had given up under the prenuptial agreement. Do you think the agreement continued to apply - that is, does "separation and reconciliation" mean the same thing as "divorce and remarriage?"

I agree with Mr. Rubin - divorce ought to have ended the prenuptial agreement. After all, clients create prenuptial agreements contemplating divorce.

Here is what the trial court did (and a prime example of why I tell my clients never to bet on what a judge will do):

In my mind, the answer is no way - divorce is the legal dissolution of marriage - separation is just that, the parties ceasing to live together but without divorce. The trial court didn't agree with me (or the surviving wife), and held that "separation and reconciliation" = "divorce and remarriage," and thus the agreement continued to apply to the new marriage. It held this, even though as a general rule a prenuptial agreement does not survive the termination of a marriage.

The Florida Court of Appeals agreed with Mr. Rubin and reversed the trial court. Thankfully, Mr. Rubin's client had the funds with which to appeal.

Reasonable minds can disagree and there can be an outright stupidity amongst judges. The appellate courts exist for both cases. For more articles here about appeals, click the link below for "appeals".

But why does this article show the dangers of DIY legal documents? After all, Mr. Rubin's article does not explicitly state that non-lawyers wrote the prenuptial agreement. Precisely. I presume attorneys did write the prenuptial agreement. Let me return to Mr. Rubin's post:

Clients often wonder why lawyers often take 10 words to say something in an agreement that could have been said in 5. This case is one reason - no matter how obvious a word may seem, sometimes you have to add a lot more language to make sure every knows what you meant if the parties want to fight about it. Its also a little bit scary, since this is not the first time I have seen plain language distorted by a trial judge beyond what was ever intended or its common, everyday meaning. Luckily, the appellate court was able to correct the error in this case, but there are instances where it is not economically viable to appeal or where the appellate court is not of a mind to disturb the ruling of the trial court.

If the trial court can misread a lawyer's writing, then I say it can even easier misread a lay person's writing. One thing comes to mind when I write a document: what will a stranger make of this? I see people who have written their own legal documents (or have used a store bought form) with realizing how the language might appear to third parties. That is when the trouble starts, and the money saved by doing the paperwork themselves evaporates in the fees charged for litigation.

Appeals and the Bluebook

What was the biggest PITA about legal writing in law school? I still think it was learning the Blue Book citations. Still, the most important thing about writing appellate briefs is knowing the Blue Book citation forms.

Why? From Indiana's Appellate Rules, Rule 22. Citation Form

Unless otherwise provided, a current edition of a Uniform System of Citation (Bluebook) shall be followed.

What is the Blue Book? This is from Wikipedia:

Bluebook

"The Bluebook: A Uniform System of Citation, a style guide, prescribes the most widely used legal citation system in the United States. The Bluebook is compiled by the Harvard Law Review Association, the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale LawJournal. Currently, it is in its 18th edition. It is so named because its cover is blue."

Now, in these days of the Internet, things are a whole lot easier. The Bluebook exists online for free here and here. Or, if you want to pay:

The Bluebook

Generations of law students, lawyers, scholars, judges, and other legal professionals have relied on The Bluebook's unique system of citation in their writing. In a diverse and rapidly changing legal profession, The Bluebook continues to provide a systematic method by which members of the profession communicate important information to one another about the sources and legal authorities upon which they rely in their work.

Pricing: Individual subscribers to The Bluebook Online access the full content of The Bluebook with dynamic searching, and annotation features for individuals and groups. The Bluebook anywhere you have internet access. A new annual subscription is $25.00. Subsequent annual renewals are $15.00. Subscriptions of up to three years may be purchased at the current rate.

Third Party Custody: In re Paternity of K.I.: J.I. v. J.H.

Something a bit different - video of the oral argument before the Indiana Supreme Court of In re Paternity of K.I.: J.I. v. J.H.. It loaded quite well but there is a longish wait for the start of the show.

I mentioned this case in Indiana Grandparent Visitation/Custody Case Going to Indiana Supreme Court. While listening to the arguments and questions from our Justices, I was impressed to hear Z.T.H. bandied about - as I mentioned in my earlier post.

Update: The Indiana Supreme Court's decision can be found at New Indiana Supreme Court Case: Grandparents Visitation.

Judges Signing Orders

The other day I was reading some online comments about judges signing orders. They were wondering why the judge had the lawyer prepare the order. They felt that something fishy was happening to them.

I can think of three situations where attorneys write up the order for the judge.

First, the judge issues an order from the bench and tells one of the lawyers to write it up. That usually happens when there is a pro se party on the other side.

Second, one party offers to write up an order - honestly, that usually happens when one side gets paid more than the other.

Third, one party (or both) wants written findings and both lawyers (pro se if someone is representing themselves) are told to submit proposed findings.

Indiana Trial Rule 52(C) allows the same thing (albeit in a more formal style):

(C) Proposed findings. In any case where special findings of facts and conclusions thereon are to be made the court shall allow and may require the attorneys of the parties to submit to the court a draft of findings of facts and conclusions thereon which they propose or suggest that the court make in such a case.

I think Trial Rule 52 has great usefulness. By necessity it focuses the court on the facts that support its judgment and winnows out the issues for an appeal.

Follow Up on "Indiana Caselaw: New marital property division case"

I linked to the Indiana Lawyer Daily article about in my post Indiana Caselaw: New marital property division case. Having read Keown v. Keown, I am a bit surprised that this case went up on appeal but deciding on the general issue of costs when a court orders the marital home sold is a good thing.

I am surprised that there was an appeal when I read the amount of money being fought over: $6,285.20 for the costs of sale and $1,972 for the cost of repairs. How Indiana's appellate courts judge a trial court's judgment operates to uphold the trial court:

The trial court issued findings of fact and conclusions of law pursuant to Indiana Trial Rule 52. Our standard of review thereon is well settled:

First, we determine whether the evidence supports the findings and second,
whether the findings support the judgment. In deference to the trial court's
proximity to the issues, we disturb the judgment only- where there is no
evidence supporting the findings or the findings fail to support the
judgment. We do not reweigh the evidence, hut consider only the evidence
favorable to the trial court's judgment. Challengers must establish that the
trial court's findings are clearly erroneous. Findings are clearly erroneous
when a review of the record leaves us firmly convinced a mistake has been
made. However, while we defer substantially to findings of fact, we do not
do so to conclusions of law. Additionally, a judgment is clearly- erroneous
under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We
evaluate questions of law de novo and owe no deference to a trial court's
determination of such questions.

Carmichael v. Siegel, 754 N.II.2d 619, 625 (Ind. Ct. App. 2001) (citations omitted).

Reading further into the opinion, one reads that husband coupled his argument about the amount of possible repairs and costs with an argument about wife not being required to sell the house. The Court of Appeals gave short shrift to that part of the husband's argument, too. (See page 5-6 of the opinion.)

These seem to be the important points from this part of the appeal:

1. If the parties are to sell marital real estate, then make sure that the Decree says it is to be sold.
2. If there are to be costs incurred when selling the marital real estate, then get those costs into the record - that means expert witnesses or uncontested dollar amounts.
3. If the marital property needs repairs before the sale, then repeat #2.

Indiana Family Law Appeals FAQ

I think The Georgia Family Law Blog deserves credit for giving me this idea. You can see Stephan Worrall's Georgia Appeals FAQ post here. Those reading Mr. Worrall's post and mine will see major differences between Indiana and Georgia appeals. Another reminder that there are fifty states, the District of Columbia, the territories, and the Commonwealth of Puerto Rico and they all have their own local peculiarities when the subject is family law.

Indiana's Court of Appeals has several FAQ pages on appeals. Frequently Asked Questions About the Appellate Process and General information

When can I file an appeal?

An appeal requires a final judgment in a case, If you have a Decree of Dissolution or a Paternity Decree, then you have a final judgment.

Unlike Georgia, Indiana recognizes only one sort of discretionary appeal called an interlocutory appeal and Indiana has an entire Appellate Rule devoted to the subject: Rule 14. Interlocutory Appeals..

For another article on this subject, see Types Of Appeals.

What is an appeal?

Appealing a case means taking a judgment to an appellate court for judging the trial judge on the law.

What is an appellate court?

Indiana has two appellate courts. The Indiana Court of Appeals will hear all family law appeals. The Indiana Supreme Court may hear family law cases but only after a decision is made by the Court of Appeals.

What does an appellate court do?

The appellate courts read the transcript from the trial court and the parties' briefs, and then they decide if the trial judge correctly applied the law to the case. The appellate courts do not do the following:

1. Trials. An appellate court is not a place for a trial.


2. Appellate courts do not hear any evidence. The facts are taken as being what is in the transcript from the trial court.

For a more formal description, follow this link.

What do I get if I win my appeal?

Generally, the Court of Appeals will send the case back to the trial court for another hearing. The Court of Appeals decision tells the trial judge to correct the errors from the original case. Appellate Rule 66 gives the full range of relief available on appeal.

What to remember most about appeals?

Timing is everything. Miss a deadline and the appeal ends.

If timing is everything, how much time do I have to decide about appealing my case?

You must file your Notice of Appeal within 30 days from the entry of a final order. That means you need to move quickly.

What does it cost to file an appeal?

Other than attorney fees, you will need to pay the filing fee with the Court of Appeals and pay the court reporter for preparing the transcript of the hearing. Transcripts cost money. Currently (December 24, 2007), the filing fee is $250.00.

What does the lawyer do in an appeal?

First, you do not need a lawyer to handle an appeal. The Indiana Supreme Court has the Pro Se Guide to Appellate Procedure. While the guide is quite good, I suggest anyone wanting to do an appeal on their own to read Indiana's Appellate Rules.

If you do hire an attorney, they will make sure that everything is filed on time, write the Brief containing the legal arguments, and appear at any oral arguments. The appeal centers around getting the Brief written and filed with the court. Time will be spent researching the case law and reading the trial transcript and then writing arguments supporting your opinion that the trial court incorrectly applied the law.


Do I need to get a local attorney to handle the appeal?

Not necessarily. All appeals go to the Court of Appeals in Indiana. I had someone once get the idea that they needed an Indianapolis attorney when appealing an Indianapolis case. Where the case comes from plays no part in the substance of an appeal. I take appellate cases from around the state.

How long does the appeal take?

The Notice of Appeal needs filed 30 days after the date of judgment, the court reporter has 90 days after that to get the record prepared, and after the reporter finished its job begins the briefing period. Appellant gets 30 days to file its brief, Appellee gets 30 days after that, and then Appellant gets 15 days for a reply brief. I count that as 195 days.

Here is what the Court of Appeals says about how long an appeal will take:

It usually takes at least six months for all briefs to be filed and the full review process to take place. There is no time limit for Court of Appeals judges to issue a decision in a case, but the Court strives to be timely.

Howard Bashman runs what is probably the top blog on the subject of appeals, How Appealing. This blog's scope goes well beyond the particulars of Indiana law and I suggest it only if you are interested in the general subject of appeals.

An Indiana Legal Glossary

The Indiana Judiciary website has a page ofGlossary of Legal Terms. The page does not contain much directly about family law (more that applies to appeals and civil and criminal cases), it may be of some help.

Indiana Appellate Case Update

Frankly, the past two weeks have been pretty barren for family law cases. Only one reported case deals with family law issues this week: Name Change of H.M.C., F.S.C., and S.A.C., b/n/f Tricia Gracey Tominack v. William Archie Curtis (PDf Format) and it is a doozie.

The facts make this case interesting. It adds little to the law on changing names (best interests of the child controls, father paying support has presumption against change of name so long paying support and objects to change), but does clarify one point about generally naming children.

At trial, Mother asserted she had a right to change her children’s names without a court order. (See Tr. at 26) (“I believe that I can . . . my children can call themselves what they want, they can go by the name they want, and I can call them the name I want.”).
That is not the law:A father and mother enjoy equal rights with regard to naming their child. See Tibbitts v. Warren, 668 N.E.2d 1266, 1267 (Ind. Ct. App. 1996) (“Upon a determination of paternity, both the mother and father potentially enjoy equal legal rights as parents with regard to issues of support, custody, and visitation. I.C. § 31-6-6.1-10 (1993). We have applied this notion of equality to the naming of the child.”), trans. denied; T.J.B. v. G.A.H. (In re Name Change of J.N.H.), 659 N.E.2d 644, 646 (Ind. Ct. App. 1995) (“Upon a determination of paternity, both the mother and father potentially enjoy equal legal rights as parents.... Hence, it is only reasonable to allow them equal rights in the naming of the child.”).

Fetkavich, 855 N.E.2d at 755.

What makes this case as interesting as it is has to do more with witnesses. Mother chose to ignore a trial court's earlier judgment disallowing a change of name. The Court of Appeals had this to say about that:

Mother fails to acknowledge the trial court properly could have chosen to ignore all of Mother’s testimony. Mother presumably damaged her own credibility by ignoring the court’s prior order denying the name change. Mother’s first excuse for ignoring the order was “the wrong standard was used, and the toll went for the appeal.” (Tr. at 20.)...The trial court was not obliged to believe Mother’s testimony the children wanted to change their names. See In re Petition of Meyer, 471 N.E.2d 718, 721 (Ind. Ct. App. 1984) (A child’s “purported desires as related by her mother do not meet the required clear and convincing standard.”).

Mother also argued that the children ought to have interviewed in chambers but the Court of Appeals held in camera interviews as being discretionary with the trial judge. Then the Court of Appeals went on to comment about the credibility of child witnesses:

Even had the court interviewed the children and heard testimony they wanted their names changed, the court would not have been required to believe their testimony:

Even had the judge determined [the child] to be sufficiently mature to make a reasoned choice, her testimony would be immediately suspect because of the possibility of undue influence by her mother. In Indiana, the domestic relationship between parent and child raises a presumption of undue influence. This presumption would be particularly strong in a domestic suit where the court is asked by the custodial parent to rely on the testimony of a child of only four and one-half years of age thus making the reliability of any such testimony highly suspect.

Meyer, 471 N.E.2d at 721. While the three children at issue here were three and four years older than the child in Meyer, Mother has not rebutted the presumption of undue influence.

I think this case also stands as evidence of what drives our more contentious divorces. This was mother's second attempt to change the children's name after divorcing their father. Mother ignored a court order about the children's names. What makes this case even more poignant is that Mother was a lawyer. The Court of Appeals recognized some of these issues in its eighth and last footnote:

Mother apparently was sufficiently committed to effectuating a name change that she placed her professional status in jeopardy by intentionally violating a court order....

This Week's New Indiana Appellate Court Cases

Not much to report about the past week except Not-For Publication cases. Here is the crop:

November 7, 2007:

1. Reported cases - none.
2. Not-For-Publication cases - (Joni L. Walters v. Mark K. Walters (NFP). "Appellant-petitioner Joni L. Walters appeals the trial court’s order modifying child support, child custody, and parenting time regarding Joni’s children with appellee-respondent Mark K. Walters... Finding that the trial court erroneously failed to award Joni parenting time with respect to A.W. and finding no other error, we affirm in part, reverse in part, and remand with instructions to enter a parenting time order regarding A.W.....")

November 8, 2007:

1. Reported cases - none.
2. Ervin Mark Ball v. Kelli T. Ball (NFP) - "Ervin Mark Ball (“Husband”) appeals the distribution of marital assets ordered in the dissolution proceeding filed by his former wife, Kelli T. Ball (“Wife”). Husband presents two issues for review, which we consolidate and restate as whether the trial court erred when it construed the parties’ prenuptial agreement. We affirm. * * * We conclude that the trial court did not err in its construction of “Marital Residence” as used in the Agreement. Thus, the trial court did not err when it granted summary judgment to Wife, finding that the Club Estates house was not the Marital Residence but was, instead her Separate Property, and the trial court did not err in finding in the Decree that there was no Marital Residence."

November 9, 2007

1. Reported cases - none.
2. Not for Publication Cases - one: Teresa Armstrong v. Jeffrey Armstrong
   

Appellant-Petitioner, Teresa Armstrong (Mother), appeals the trial court’s Order calculating Appellee-Respondent’s, Jeffrey Armstrong (Father), weekly gross income, and the trial court’s decision that Father need not pay child support over and above his responsibilities for A.A.’s higher education expenses.

We affirm in part, reverse in part, and remand with instructions.

Educational Benefits/Support - New Court of Appeals case

Another case handed down by the Indiana Court of Appeals yesterday has a very interesting point about educational benefits and commuting students. In Bryan Carson v. Cynthia Carson (PDF format), the parties' daughter attended Manchester College and lived at home. The trial court ordered father to pay daughter's room and board expenses based upon the costs of living at Manchester College even though she lived at home.

The Indiana Court of Appeals upheld the educational benefits order but reversed the trial court for using the expenses of a Manchester College dormitory room.

So new law for Indiana unless the Indiana Supreme Court takes the case (assuming a subsequent appeal) or another panel of the Court of Appeals takes a different approach.

Contempt: New Court of Appeals case

Yesterday The Indiana Court of Appeals handed down an opinion on contempt. The case's name is Paternity of J.T.I., Elisabeth A. Irvin v. Delenore Q. Guyton.

Amazingly, the trial court found the mother in contempt even though the father wholly failed to comply with Indiana Code Section 34-47-3-5 which governs indirect contempt cases.

File this one away as an example of when an appeal is necessary.

I suggest you might want read other articles I have posted on contempt by clicking below this post on "Label: contempt."

Observations on Not-For-Publications opinions and on do-it-yourself appeals

Warning, I discuss a Not-For-Publication (NFP) case in this post. NFP means the case cannot be cited as law, or as the little box in the upper left hand corner on the first page says:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Why write about such a case? My first reason is that while the case cannot be cited as law, the case remains a resource for finding the law on a subject.

Query v. Query (PDF format; Indiana Court of Appeals, 10-25-2007) is a resources for post-high school educational cases on the subjects of modification and enforcement. The Court of Appeals upheld Father's modification on the grounds of Father's inability to work and son being 22 year old and working full time as substantial and continuous grounds for modification. (Pages 6 -7 ). The Court of Appeals reversed the trial court on the amount father owed for unpaid educational benefits. As with ordinary child support, educational benefits may be modified only back to the date of filing the petition. Money owed from before the date of filing the petition was still due and Father ought to be have been held in contempt. (Pages 7-8).

Randall Walden v. Val Majors Castrodale has a former husband trying to set aside his marriage because the Marion County Clerk could not find within its records a copy of his Virgin Island marriage. The former husband got nothing but an Order to pay the wife's attorney fees. Some good nuggets here on the law marriage.

My second reason centers on something less concrete. I suppose pro se appeals have existed forever. (Pro se means doing it yourself). Sometimes they are successful (as in Query) and some times they are so bad that the other side gets an Order for appellate attorney fees. Walden has a brief discussion of some of the things one can do wrong on an appeal. I say some because appeals are complicated beasts - complicated by timing rules, complicated by formatting rules, and complicated by the rules of argument. No one should undertake an appeal lightly. I suspect that Mr. Query had trouble finding a lawyer to put his argument before the courts.

I should admit another reason for reading these NFP cases: some are just really good stories.