« Ind. Law - More on "Murky times for Planned Parenthood: Local clinic joins others in state wary of new law’s consequences" | Main | Indiana Decisions - A multiplicity of reactions to Barnes v. State, »

Tuesday, May 24, 2011

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In Wastewater One, et al. v. Floyd County Board of Zoning Appeals, et al., a 25-page opinion, Judge Brown writes:

Wastewater One, LLC (the “Utility”) and William A. Musselman (“Musselman,” and collectively with the Utility, the “Applicants”) appeal the Findings of Fact, Conclusions of Law, and Judgment in favor of the Floyd County Board of Zoning Appeals and Floyd County, Indiana (collectively, the “BZA”) affirming the BZA's denial of a conditional use permit for the expansion of a sewage treatment plant. The Applicants raise four issues which we revise and restate as:
I. Whether the BZA had jurisdiction over the Utility's proposal to expand the Plant;
II. Whether the requirements of the Floyd County Zoning Ordinance (the “Ordinance”) for evaluating conditional use petitions are contrary to Indiana law; and
III. Whether the court erred in affirming the BZA's denial of the conditional use petition.
We affirm.
Paternity of A.S.; B.S. v. E.M. , a 28-page, 2-1 opinion, Judge Crone writes:
On appeal, Father argues that the trial court abused its discretion by admitting the recordings, granting primary custody to Mother, and failing to sanction Mother for interfering with his parenting time. We conclude that the recordings, including the portions that Mother did not hear, were relevant to Father's attitude toward co-parenting. We also conclude that the trial court did not abuse its discretion by giving Mother primary custody because (1) there was overwhelming evidence that the parents cannot effectively co-parent; (2) the record supports the trial court's conclusion that Father was less willing to cooperate than Mother; and (3) the record supports the court's conclusion that A.S. would benefit from more time in Missouri because she could participate in educational programs on a consistent basis. Finally, we conclude that the trial court did not abuse its discretion by not finding Mother in contempt or ordering her to pay attorney fees because Father also violated court orders. However, Mother advances no reason why Father should not receive make-up parenting time. Therefore, we remand for the trial court to address the issue of make-up parenting time, but affirm in all other respects. * * *

NAJAM, J., concurs.
ROBB, C.J., concurs in part and dissents in part with separate opinion. [that begins, at p. 20 of 28] I concur in part and dissent in part. I concur with my colleagues' opinion regarding admission into evidence of recordings made by Father, and regarding the trial court's decision not to hold Mother in contempt or order her to pay attorney fees. For two reasons I respectfully dissent, however, from my colleagues' opinion affirming the trial court's order modifying custody and granting primary custody to Mother. First, I believe that the trial court's specific findings as to the parties' reluctance to cooperate or communicate are insufficient to support modification of custody to grant primary custody to Mother. Second and similarly, I believe that despite the parties' difficulty cooperating and communicating, the trial court clearly erred in modifying custody, thereby discouraging the parties from finding a way to work out their differences and encouraging their continued immature behavior.

In S.W. by P.W. v. B.K., a 7-page opinion, Judge Crone writes:
This case involves a developmentally disabled adult, S.W., whose sister sought a protective order on her behalf against a man who had repeatedly banged on S.W.’s apartment door and tried to enter. The trial court issued a two-year protective order forbidding the man from having contact with S.W. Nonetheless, the man twice returned to S.W.’s apartment within the five weeks that followed, and S.W. filed a petition for an order to show cause why the man should not be held in contempt for violating the protective order. She also sought attorney’s fees. The trial court denied her petition without a hearing. Thereafter, she filed a motion to correct error, the denial of which she now appeals. She asserts that the trial court denied her due process by failing to conduct a hearing on her contempt petition and that she should be exempt from paying the $250 appellate filing fee. We agree and therefore reverse and remand for proceedings consistent with this decision.
In Harold E. York v. State of Indiana , a 7-age opinion, Judge Baker writes:
We granted this interlocutory appeal in anticipation of addressing appellant-defendant Harold E. York’s claim that the trial court should have granted his motion to dismiss the charge of Failure to Register as a Sex Offender,1 a class D felony. York argues that changing the sex offender registration requirement from ten years to life is punitive and violates the prohibition against ex post facto laws.

Upon further reflection, we note that the charge against York was the result of his failure to register during the original ten-year period and his alleged failure to report a change in residence under the statute. Thus, the lifetime registration requirement is not at issue here, and we are compelled to dismiss this appeal. * * *

Notwithstanding York’s contentions regarding about the effect of the lifetime registration requirement and its purported unconstitutionality, we note that the State filed the charge against York in June 2008, alleging that he failed to list his fiancée’s house as his residence from “April 2007 through March 2008,” in violation of the residency requirements. Appellant’s App. p. 5. The dates alleged in the charging information with regard to York’s residency registration requirement encompassed the time period of York’s obligation to register under the original ten-year period. Put another way, the State did not allege that York had failed to register under the lifetime requirement that became effective in 2006. Rather, the State only asserted that York had violated the Registration Act because he failed to include his fiancée’s house as his residence.

As a result, because the lifetime registration requirement was not at issue when the State filed the charge against York, we must save that challenge for another day. Appeal dismissed.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of K.K.; C.W. v. IDCS (NFP)

NFP criminal opinions today (1):

Christian D. Howard v. State of Indiana (NFP)

Posted by Marcia Oddi on May 24, 2011 12:52 PM
Posted to Ind. App.Ct. Decisions