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Monday, July 28, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Mahmoud M. Basileh v. Arwa G. Alghussain , a 17-page opinion, Judge Vaidik writes:

After the Indiana trial court granted the motion of Arwa Alghusain (“Mother”) to transfer jurisdiction over her children’s child support matters to her home county of Monterey County, California, Mahmoud M. Basileh (“Father”), the children’s father, appeals. Pursuant to the jurisdiction provision of the Uniform Interstate Family Support Act (“UIFSA”), continuing, exclusive jurisdiction over child support matters may not be transferred out-of-state when neither the parents nor the children remain residents of Indiana until all parties file a written consent with the Indiana tribunal. However, under the federal Full Faith and Credit for Child Support Orders Act (“FFCCSOA”), written consent by the parties to transfer continuing, exclusive jurisdiction is not required where neither the children nor the parties reside in Indiana. The federal statute prevails over the state statute, and we conclude that Mother, Father, and the children are all not residents of Indiana. We therefore affirm. * * *

Based upon our review of the record, we conclude that Father is no longer domiciled in Indiana and that Indiana is therefore not his place of “residence” for the purposes of the FFCCSOA.12 Thus, pursuant to the FFCCSOA,[12] Indiana no longer has continuing, exclusive jurisdiction of the parties’ child support order, and the trial court did not err in transferring jurisdiction over the order to the State of California.[13]
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[12] Father expresses concern in his Reply Brief that members of the Armed Forces who are deployed or stationed in states other than Indiana for indefinite periods of time will not be considered residents of Indiana. Nothing in this opinion leads to such a result. Members of the military who leave Indiana but have a subjective intent to return upon leaving the service remain domiciliaries of this State.
[13] We encourage the General Assembly to revisit the language of Indiana Code § 31-18-2-5(a), given our conclusion that this subsection conflicts with federal law.

In Knowledge A-Z, Inc. v. Sentry Insurance , an 8-page opinion, Judge Bailey writes:
Knowledge A-Z, Inc. (“Knowledge”) appeals the trial court’s denial of its Motion to Correct Errors. We affirm, grant Sentry Insurance’s request for attorney fees pursuant to Indiana Appellate Rule 66(E), and remand with instruction for the trial court to calculate the amount of Sentry Insurance’s appellate attorney fees. * * *

Conclusion. The trial court did not abuse its discretion in denying Knowledge’s Motion to Correct Errors or in awarding Sentry its attorney fees in litigating that motion. Furthermore, we assess damages in favor of Sentry amounting to the cost of contesting this appeal and remand to the trial court with instruction to calculate that award.

NFP civil opinions today (2):

Tylene R. Shepherd v. Clarence D. Shepherd (NFP) - "Tylene R. Shepherd (“Mother”) appeals the trial court’s order modifying physical custody of the parties’ sons, C.T.S. and M.A.S., to Clarence D. Shepherd (“Father”). Because the record shows that the children’s academic progress has deteriorated and both children were being retained in their current grade levels, we conclude that the trial court did not abuse its discretion in concluding that there has been a substantial change in C.T.S.’s and M.A.S.’s adjustment to their school and that it is in the best interests of the children to modify physical custody to Father."

David Fisher v. Lisa D. Fisher (NFP) - "We presume that trial courts know and follow the applicable law. The trial court here awarded Mother rehabilitative maintenance pursuant to the applicable statute, and Father has not convinced us that the award was, in actuality, an award of alimony. The majority of the trial court’s findings are not clearly erroneous, and those that are, or arguably could be, in error, do not affect the trial court’s ultimate decision to award rehabilitative maintenance. Lastly, the trial court did not abuse its broad discretion in either the duration or the amount of the rehabilitative maintenance it awarded to Mother."

NFP criminal opinions today (8):

Thomas West v. State of Indiana (NFP)

Nicole Higgins v. State of Indiana (NFP)

Steven G. Poling v. State of Indiana (NFP)

Samuel L. Luckett v. State of Indiana (NFP)

Mechelle Saffold v. State of Indiana (NFP)

Jace Piper v. State of Indiana (NFP)

Jose F. Valencia v. State of Indiana (NFP)

Richard Joe Mosley, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on July 28, 2008 03:12 PM
Posted to Ind. App.Ct. Decisions