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Friday, October 02, 2009
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
D.B. v. M.B.V. - "Here, the trial court articulated no specific finding that parenting time would cause harm to the children. The record disclosing the past interaction between Father and his children does not approach the egregious circumstances in which we have previously found that parenting time may be terminated, such as when a parent sexually molests a child. Clearly, our parenting time statute does not provide for the elimination of parenting time because reunification counseling has proved unusually challenging or because teenagers do not wish to interact with a parent while accepting substantial financial benefits from that parent.
"However, while the complete termination of parenting time is not supported by the evidence, the record would support an order for supervised parenting time. Such an order would be appropriate given the volatile relationship between the parties, the ages of the children, and the concern of one therapist that supervision of parenting time would protect Father from unfounded accusations. On remand, should the trial court restrict Father’s parenting time upon entry of the requisite statutory finding of endangerment, we encourage the trial court to order that the parenting time be supervised."
NFP civil opinions today (2):
Sean Feeney v. Review Board and Cetani (NFP) - "Feeney has not established that he was wrongly denied unemployment benefits. We affirm."
Michael A. Stephens v. Gilkey Wholesale Greenhouses Inc. (NFP) - "Under the facts and circumstances of this case, Stephens's default judgment did not arise from a breakdown in communication with his attorney or from any other “mistake, surprise, or excusable neglect.” Rather the default judgment resulted because Stephens failed to act for a substantial period of time after being advised by Fahl that Stephens should retain alternative counsel in the Gilkey matter. After being so advised, Stephens could not reasonably believe that Fahl continued to deal with the Gilkey matter.
"After Fahl had notified Stephens of his inability to continue as counsel, Stephens had at least two months to make alternative arrangements before Gilkey filed its motion for default judgment. Stephens knew that he needed to retain another attorney. Stephens cannot now argue that his neglect of this matter is excusable under Trial Rule 60 (B) (1).
"The trial court did not abuse its discretion when it denied Stephens's motion to set aside default judgment. Affirmed."
DARDEN, J., and RO
NFP criminal opinions today (2):
Randall Tison v. State of Indiana (NFP)
C.R. v. State of Indiana (NFP)
Posted by Marcia Oddi on October 2, 2009 12:55 PM
Posted to Ind. App.Ct. Decisions