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Tuesday, June 26, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 3 NFP)

For publication opinions today (5):

In Gwen E. Morgal-Henrich v. David Brian Henrich , an 11-page opinion, Judge Barnes writes:

Because Husband’s actual income during the relevant time period is known, we conclude that the trial court abused its discretion by using $390 per week as Husband’s weekly gross income. We reverse and remand for the trial court to recalculate Husband’s child support arrearage. On remand, given Husband’s fluctuating income, we recommend that the trial court use an income averaging calculation to determine Husband’s weekly gross income. * * *

The trial court properly divided the marital assets, but the trial court abused its discretion when it calculated the child support owed by Husband. We affirm in part, reverse in part, and remand for a recalculation of Husband’s child support.

In Cortney L. Schwartz v. Jodi S. Heeter, a 20-page, 2-1 opinion, Judge Bailey writes:
The parties present several issues for our review, which we consolidate and restate as:
I. Whether the trial court erred when it construed the settlement agreement’s “true up” provision to apply the previous year’s Child Support Guidelines for each year’s determination of Father’s “true up” payments;
II. Whether Mother may, upon remand, be granted relief based upon her previously-filed Petition for Modification of Support; and
III. Whether Mother is entitled to appellate attorneys’ fees under Appellate Rule 66. * * *

Here, the parties recognized that Father’s income might vary from year to year based upon occasional earnings beyond the weekly income estimated in 2009. Thus, they agreed to a procedure by which variations in Father’s income could be taken into account for purposes of determining Father’s child support obligations without requiring litigation, namely, the “true up” provision in the settlement agreement. That procedure was then incorporated into a court order. * * *

The parties’ disagreement centers on whether the language, “with all other factors remaining the same for purposes of calculating the parties’ adjusted child support obligation,” requires the parties to apply the Child Support Guidelines’ weekly child support obligation formula as it existed in 2009 or in later years. Father contends that “all other factors remaining the same” means that only line 1 of the Child Support Obligation Worksheet may change, and that the 2009 formula applies going forward until the child support obligation is modified. Mother contends that the Guidelines are to be applied as they exist in the year in which the “true up” payment will be made. Under this procedure, then, the “true up” payment for 2009 should have used the 2010 Guidelines because Father made the payment in 2010, the payment for 2010 should have used the 2011 Guidelines because Father made the payment in 2011, etc. * * *

The trial court’s construction of the “true up” agreement was erroneous, and thus its entry of summary judgment was partially in error as to Father’s “true up” obligation for 2010. Mother may not, upon remand, seek rulings from the trial court on her prior motions for modification of Father’s support obligation. Finally, we deny Mother’s request for appellate attorney’s fees under Appellate Rule 66.

ROBB, C.J., concurs.
MATHIAS, J., concurs in part and dissents in part. [beginning at p. 17] I agree with the trial court’s interpretation of the “true up” provision of the parties’ marital settlement agreement, and I respectfully dissent from the majority with regard to this issue.

In City of Indianapolis v. Rachel Bushman , a 9-page opinion by Judge Barnes, the Court reverses the trial court ruling that Buschman's tort claim notice was sufficient:
The trial court improperly granted summary judgment in Buschman’s favor on the issue of whether her notice was sufficient to inform the City of a potential personal injury claim. We reverse and remand for further proceedings.
In In Re The Matter of a Search Warrant Regarding the Following Real Estate, Sensient Flavors, LLC v. Indiana Occupational Safety and Health Administration, a 14-page opinion, Judge Vaidik writes:
The Indiana Commissioner of Labor filed a petition for an anticipatory search warrant in order to conduct an administrative inspection of Sensient Flavors LLC’s Indianapolis facility. Sensient opposed the search warrant and was successful in getting it quashed. The trial court later issued an amended search warrant that was more restrictive than the original. Although the search of Sensient’s facility has been completed, Sensient appeals the issuance of the amended search warrant, arguing that it was not supported by probable cause and unreasonable because it did not contain any limitations regarding the scope or manner of the search. Concluding that Sensient has failed to exhaust its administrative remedies, we dismiss this appeal.
In Dennis and Jeremy Cochran v. Zeroffos Hoffman and John Dye, an 8-page opinion, Sr. Judge Barteau concludes:
Based upon the foregoing discussion and authorities, we conclude the small claims court erred in its determination that the grant of an easement did not include the right to park within the easement, and we reverse the decision of the small claims court as to that issue. Further, we conclude that Jeremy failed to show error with regard to the award of damages, and we affirm the small claims court’s decision not to award damages. Affirmed in part and reversed in part.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Larry R. Cox v. State of Indiana (NFP)

Robert Williams v. State of Indiana (NFP)

Koko Win v. State of Indiana (NFP)

Posted by Marcia Oddi on June 26, 2012 01:35 PM
Posted to Ind. App.Ct. Decisions