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Tuesday, June 10, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

For publication opinions today (6):

Gilbert Ramon v. State of Indiana , a 29-page, 2-1 opinion, discusses several significant issues at length, including the State’s ability to amend the charging information under IC 35-34-1-5 and whether application of the amended version of the statute to the defendant violates ex post facto laws, as the dissent writes. This issue is first raised by the Court, sua spone, at p. 10.

Barry Wanner v. Jill Hutchcroft - "We find no abuse of discretion in the trial court’s decision to divide the marital estate equally, in accordance with the statutory presumption that an equal division is just and reasonable. Nor do we find an abuse of discretion in the trial court’s allocation of tax consequences."

In Swan Lake Holdings LLC v. Dean Hiles and Denielle Hiles, a 15-page opinion, Judge Crone writes:

Swan Lake Holdings, LLC (“Swan Lake”), appeals the denial of its motion for judgment on the evidence and the jury’s verdict finding it thirty-five percent at fault on the premises liability complaint filed by Dean and Denielle Hiles. We affirm. * * *

[I] In the case at bar, the fact that Swan Lake had no control over the manner in which Hiles performed his services is not dispositive because there is evidence of probative value to support a finding that the rotten purlins were a cause of Hiles’s fall. We conclude that the trial court properly denied Swan Lake’s motion for judgment on the evidence. * * *

[II] “Any error regarding an instruction is waived where grounds asserted on appeal differ from those stated in objections at trial.” Babson Bros. Co. v. Tipstar Corp., 446 N.E.2d 11, 15 (Ind. Ct. App. 1983); Dominguez v. Gallmeyer, 402 N.E.2d 1295, 1300 (Ind. Ct. App. 1980). We conclude that Swan Lake has waived this argument. * * *

[III] Although there are differences between this case and Beta Steel, the evidence here supports an inference that Swan Lake permitted a dangerous condition to develop on its property that it did not address, that is, the rotten purlins. In that sense, Swan Lake could be said to have “created” a dangerous condition. Our review of the record supports the Hileses’ assertion that Swan Lake’s lack of control was a significant issue in the case. Therefore, we cannot say that the trial court abused its discretion by giving instruction number six. Affirmed.

In Estate of Martha O'Neal, Therese Newkirk v. Bethlehem Woods Nursing and Rehabilitation Center, a 4-page opinion, Judge Robb concludes: "We grant Petitioners’ petition for rehearing for the limited purpose of clarifying the issues discussed above and affirm our original opinion in its entirety."

In James Kohlmeyer v. Second Injury Fund , an 11-page opinion, Judge Friedlander writes:

James Kohlmeyer appeals the Indiana Worker’s Compensation Board’s (the Board’s) denial of Kohlmeyer’s petition for payment of benefits from Indiana’s Second Injury Fund. The following issue is dispositive of the appeal: Do Social Security disability benefits count toward the threshold amount of benefits that must be received in order to become eligible for benefits from the Second Injury Fund? We affirm. * * *

In summary, we conclude that the threshold requirement regarding benefits received, as set out in I.C. § 22-3-3-13(h)(2), must be met by considering only Worker’s Compensation benefits. The arguments to the contrary made on behalf of Kohlmeyer are not without merit. They are, however, arguments more properly addressed to the General Assembly, inasmuch as they constitute appeals to modify the statute to include benefits from other sources in reaching the threshold. As it currently exists, the statute permits no such interpretation. We also conclude that the Stipulation signed by Kohlmeyer and H.B. Zachry Company and approved by the Board did not include a guarantee that Kohlmeyer would be eligible for Second Injury Fund benefits. Accordingly, the decision of the Board is affirmed.

In Todd Allen Clark v. Michelle D. Clark, a 10-page, 2-1 opinion, Judge Riley writes:
Appellant-Respondent, Todd Allen Clark (Clark), appeals the trial court’s Order denying his Verified Petition for Abatement and/or Modification of Child Support Order. We reverse and remand.

Clark raises one issue on appeal, which we restate as: Whether the trial court abused its discretion in denying his petition in light of our supreme court’s decision in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007). * * *

[I] Established case law holds that incarceration due to voluntary criminal conduct is not a valid rationale for abatement of an existing child support order. [cites omitted] However, in light of our supreme court’s rationale in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), we no longer believe these cases properly reflect the current status of the law. * * *

[In Lambert] the supreme court concluded that “in determining support orders, courts should not impute potential income to an imprisoned parent based on pre-incarceration wages or other employment-related income, but should rather calculate support based on the actual income and assets available to the parent.” In its analysis, our supreme court was very firm in distinguishing its holding from the situation at hand, i.e., how to treat incarceration in setting an initial child support order from a petition to modify an existing support order.

Although our supreme court limited Lambert specifically to the initial determination of a child support order, we now conclude that its rationale applies equally to a request for modification of a child support order based on changed circumstances due to incarceration. * * *

Granted, while Clark’s child support payment is set at a mere fifty-three dollars per week, this order is high compared to the twenty-one dollars he makes per month from his prison job assignment. Leaving his support order at the current level through Clark’s incarceration would build a high arrearage burdening Clark’s re-entry into the community upon his release. In light of our supreme court’s analysis in Lambert, we conclude that his incarceration serves as a changed circumstance so substantial and continuing as to make the terms of his support order unreasonable pursuant to I.C. § 31-16-8-1. * * *

[II] In its Order, the trial court appears to imply that public policy demands that an incarcerated parent’s child support obligation cannot be set at less than minimum wage. We are unaware of the existence of such a public policy. * * * Thus, minimum wage should not be interpreted as a cut-off amount for child support payments.

[Conclusion] Based on the foregoing, we conclude that the trial court improperly denied Clark’s Petition for Abatement and/or Modification of Child Support Order. Reversed and remanded for further proceedings in accordance with this opinion.

BAKER, C.J., concurs.
ROBB, J., dissents with separate opinion. [which concludes] Given Lambert’s deliberate and careful distinction between existing and new support orders, I believe it is our supreme court’s exclusive province to expand the parameters of Lambert in such a way as to include the situation presented in this case. Until it does, I believe that the existing case law holding that an abatement of an existing child support order is not warranted due to incarceration of one of the parties, see Ross v. Ross, 581 N.E.2d 982, 983 (Ind. Ct. App. 1991), continues to control. I would affirm the trial court.

NFP civil opinions today (6):

David W. Woolf v. Elzie D. Hale (NFP) - "Here, although we affirm the trial court’s grant of summary judgment in favor of the Hales, we decline their request for attorney fees because the record does not support a finding that Woolf’s claims were permeated with bad faith, frivolity, or vexatiousness. The award of attorney fees in favor of the Hales is therefore unwarranted. See id. Affirmed and request for attorney fees is denied."

Termination of S.K., A.K., L.K.; and B.K. and S.K. v. Steuben Co. Dept. of Indiana Dept. of Child Services (NFP) - Termination, affirmed.

American Consulting v. Synette Schuck (NFP) - "On appeal, American Consulting presents one issue: Did the trial court err in concluding that Section 12 of an employment contract between American Consulting and Schuck constituted an unenforceable penalty rather than a valid provision for liquidated damages? We affirm."

In In re the Adoption of: C.I., J.A.S., and M.I. (NFP), a 6-page opinion, Judge Bailey writes:

Christopher and Trease S. (“the Foster Parents”) petitioned to adopt their four foster children, a sibling group consisting of C.I., J.A.S., J.E.S., and M.I. (“the Children”). Lena J., the paternal grandmother of twins J.A.S. and J.E.S. (“Grandmother”), petitioned to adopt them. The trial court granted the Foster Parents’ petition to adopt C.I. and M.I. but granted Grandmother’s petition to adopt J.A.S. and J.E.S. The Foster Parents now appeal. We reverse and remand with instructions.

The Foster Parents present a single issue: whether the trial court clearly erred by finding it to be in the best interests of J.A.S. and J.E.S. that Grandmother, and not the Foster Parents, adopt them. * * *

The evidence of record supports the trial court’s determination with regard to the best interests of C.I. and M.I. The same evidence points solely to a conclusion that it is in the best interests of J.A.S. and J.E.S. to likewise be adopted by the Foster Parents. The trial court reached the opposite conclusion by erroneously giving legal preference to a biological relationship. We therefore reverse the order denying the Foster Parents’ petition to adopt J.A.S. and J.E.S. and granting Grandmother’s counter-petition for adoption. We remand with instructions to the trial court to grant the Foster Parents’ petition to adopt J.A.S. and J.E.S.

Matthew Wrinkles v. Dept. of Correction (NFP) - "Wrinkles has failed to demonstrate that IDOC policy required him to exhaust the grievance process prior to filing his notice of tort claim. To the contrary, IDOC policy permits the filing of a notice of tort claim prior to completion of the grievance process. Wrinkles acknowledges that he could have filed his notice of tort claim within the 180-day time limit, but that he did not. Despite his many arguments, Wrinkles has failed to establish that his efforts to exhaust the grievance process tolled the limitation period for filing a notice of tort claim. Wrinkles filing of his notice of tort claim was untimely. We therefore conclude that the court properly granted summary judgment in favor of the IDOC."

North Indiana Annual Conf. of the United Methodist Church, Inc. v. Rex Schrader (NFP) - "Issue. Whether the trial court erred in taking judicial notice of the conclusions, including the scope of the Conference’s easement, from a 1994 judgment." Affirmed.

NFP criminal opinions today (10):

Bradford Mullins v. State of Indiana (NFP)

Demetrius Edwards v. State of Indiana (NFP)

Loretta Ballentine v. State of Indiana (NFP)

Sean Mial v. State of Indiana (NFP)

Donald Dowdell v. State of Indiana (NFP)

Denver Clifford v. State of Indiana (NFP)

Brenda St. John v. State of Indiana (NFP)

Michael K. Johnson v. State of Indiana (NFP)

Brian Crist v. State of Indiana (NFP)

Michael J. McDarrah v. State of Indiana (NFP)

Posted by Marcia Oddi on June 10, 2008 12:47 PM
Posted to Ind. App.Ct. Decisions