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Monday, July 30, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

Sharren M. (Garrity) Grathwohl v. Steven T. Garrity - "It has been repeatedly held that this statute [IC 31-15-7-4(a)] requires inclusion in the marital estate of all property owned by the parties before separation, including inherited property. * * * Regarding Sharren’s joint tenancy argument, as a general rule an asset of a party should be included in the marital estate so long as the party has a present interest of possessory value in the asset. * * * Thus, Sharren has a present right to enjoy the use of the Michigan property and a right to sell or mortgage her interest in it. This is sufficient to render her joint tenancy interest a present possessory interest for purposes of including the Michigan property in the marital estate. The trial court erred as a matter of law in excluding Sharren’s joint tenancy interest in the Michigan property from the marital estate. * * * [Re dissipation of marital assets] With respect to the Conseco stock, Steven is far from the only person who became “stuck” with worthless stock in that company. If it had not lost all of its value, it too would have been included in the marital estate. The fact that Steven ultimately made a poor decision in purchasing the stock does not render such purchase frivolous. * * * We remand for the limited purpose of requiring the trial court to include both parties’ inherited properties in the marital estate, to valuate those properties, and to issue a new order redistributing the marital assets accordingly. Otherwise, we affirm."

In William T. Armstrong v. Mary M. Gordon , an 18-page opinion, Judge Sullivan writes:

Appellant-Defendant, William Armstrong, appeals following a jury trial in which the jury awarded damages to Appellee-Plaintiff, Mary Gordon, in the amount of $452,200 for injuries sustained in a car accident. Upon appeal, Armstrong makes two claims, one of which we find dispositive: whether the trial court erred in excluding evidence of Gordon’s pre-existing medical problems with her neck, including those injuries allegedly related to prior automobile accidents. We reverse and remand for a new trial.
In Nathaniel Grant v. State of Indiana , a 5-page opinion, Senior Judge Garrard writes:
In this appeal [defendant] challenges the proof necessary for the determination that he had committed the two prior unrelated felonies necessary to establish habitual offender status. * * *

Here the state presented detailed evidence of Grant’s fingerprinting in 1979 and the establishment and use of “gallery numbers”. It presented evidence of the identification of Grant’s thumbprint in the present case and in the arrest reports for the 1983 felony and the 1984 felony, all under Grant’s unique gallery number, 270742. That same gallery number appeared on the chronological case summary for both prior cases.

With this evidence linking Grant to the prior felonies, a reasonable fact finder could well have concluded beyond a reasonable doubt that he was the same person convicted of the two prior unrelated felonies as required by I.C. 35-50-2-8(a).2 Moreover, we do not share counsel’s enthusiasm for bright line rules. The issue is proof beyond a reasonable doubt, and that proof may be achieved by the use of any properly admissible evidence sufficient to establish the ultimate fact. We find no error.

NFP civil opinions today (4):

In the Matter of H.L.N.; Robert E. Chambers v. Rebecca J. Schooley (NFP) - "The trial court did not abuse its discretion in denying Chambers’ motion for the appointment of a guardian ad litem. However, the trial court’s order was not supported by either of the findings required by statute for such a decision. Remanded."

Reggie Carter v. United States Steel (NFP) - Workers compensation. "Given our standard of review on appeal, we cannot say that the Board abused its discretion when it denied Carter PTD benefits. While we might have weighed the evidence differently if we were the trier-of-fact, we are precluded from reweighing the evidence on appeal and must affirm the Board’s findings and conclusions."

Termination of the Parent-Child Relationship of M.M.J.R.; Melvin J. Nichols v. Indiana Department of Child Services, Decatur County (NFP) - "Concluding that the Indiana Department of Child Services, Decatur County Office (“DCDCS”), proved by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in M.M.J.R.’s removal will not be remedied and that the termination is in the best interests of M.M.J.R., we affirm the termination of Nichols’ parental rights to M.M.J.R."

William Glenn Sciscoe and Anita Michelle Sciscoe v. Marcella McDaniel, et al (NFP) - "William and Anita Sciscoe (collectively the Sciscoes) appeal the trial court’s denial of their summary judgment motion in their quiet title action, as well as the grant of summary judgment in favor of Marcella McDaniel, personal representative of the estate of John Davis (the Estate), on the Estate’s complaint for foreclosure. *** We affirm."

NFP criminal opinions today (9):

Jean Paul Nathan v. State of Indiana (NFP)

Joseph R. Williams-Bey v. State of Indiana (NFP)

Raven Belt v. State of Indiana (NFP)

Ezekiel I. Jones v. State of Indiana (NFP)

Robert Rogers v. State of Indiana (NFP)

Sean K. Ellison v. State of Indiana (NFP)

Kunta A. Steward v. State of Indiana (NFP)

Erick A. White v. State of Indiana (NFP)

Michael S. Boguskie v. State of Indiana (NFP)

Posted by Marcia Oddi on July 30, 2007 01:24 PM
Posted to Ind. App.Ct. Decisions