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Thursday, August 14, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Gary Becker v. Heather Becker, a 4-page opinion, Judge Riley writes:

Appellant-Petitioner, Gary Becker (Becker), appeals the trial court’s Order modifying his child support. We reverse. * * *

Based on Lambert, the trial court abated Becker’s child support obligation from $110.00 to $25.00 per week, effective February 22, 2007, the date of our supreme court’s Lambert decision, until August 25, 2009, the date of Becker’s projected earliest possible release from incarceration. * * *

[W]e conclude that the trial court abused its discretion by making the abatement of Becker’s child support obligation retroactively effective to a date before the date Becker filed his request to modify child support. The modification of child support of $25.00 per week is hereby entered beginning December 28, 2007, and continuing until further hearing in the trial court to determine child support upon Becker’s release from incarceration.

In Paternity of C.H.W., Jeffrey H. Smith v. Lisa H. Weedman, an 18-page decision with 3 opinions, one of them dissenting, Judge Riley writes:
Appellant-Respondent, Jeffrey Smith (Smith), appeals the trial court’s Findings of Fact and Conclusions of Law, ordering Smith to pay the extraordinary educational expenses for the private school education of his minor child. We affirm. * * *

We find that the trial court did not abuse its discretion when it ordered Smith to pay 41% of C.H.W.’s extraordinary educational expenses for his elementary private school. * * *

ROBB, J., concurring with separate opinion. * * *
BAKER, C.J., dissenting with separate opinion. [which concludes] The majority relies on Father’s past failure to pay child support and obstreperous behavior during discovery in concluding that the trial court found him able to pay the costs of tuition. Slip op. p. 11. I cannot see how this past behavior in any way supports a conclusion that the trial court considered Father’s ability to pay the tuition and found that he is, in fact, able to do so. There is neither any indication whatsoever that the trial court made this required inquiry nor findings supporting the order that Father pay for a portion of the ISI tuition costs. Therefore, I would reverse this portion of the trial court’s order.

NFP civil opinions today (3):

Lori Caldwell v. Adolphus A. Anekwe, M.D., et al (NFP) - "Caldwell failed to demonstrate a genuine issue of material fact regarding informed consent. Accordingly, we find that the trial court properly granted the Defendants’ renewed motion for summary judgment."

Aaron Israel v. David J. Donahue, et al (NFP) - "Because Israel is challenging his assignment to the Secure Housing Unit and because enforcement of prison disciplinary sanctions are not subject to judicial review, Israel’s claim is not a claim upon which relief may be granted. Accordingly, Israel’s claim is dismissible under the Frivolous Claim Law. We therefore affirm the trial court."

Russel Dean Banks v. Donna Sue Banks (NFP) - "Based on the foregoing, we conclude that the trial court needs to clarify whether it intended to deviate from an equal division of the marital estate, and if so, explain the reason for the deviation and make findings as to the amount and percentage of the marital estate being distributed to each party. If the trial court does not intend to deviate from an equal split of the marital estate, the trial court should adjust the division of the marital estate accordingly."

NFP criminal opinions today (3):

Dwight Vandiver, Sr. v. State of Indiana (NFP)

Garry D. Shuler v. State of Indiana (NFP)

Libraye M. Harris v. State of Indiana (NFP)

Posted by Marcia Oddi on August 14, 2008 01:16 PM
Posted to Ind. App.Ct. Decisions