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Thursday, July 26, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Denise A. Mertz a/k/a Denise A. Grimmer v. Robert G. Mertz , a 17-page, 2-1 opinion, Judge Vaidik writes:

Denise (Mertz) Grimmer (“Mother”) and Robert Mertz (“Father”), who have two children, were divorced in 1994. Over the course of these proceedings, Father’s child support obligation has been modified many times, and due to arrearages, Father’s driving privileges were suspended. The most recent court order modified his weekly child-support obligation to what amounts to half of his income: $49 for support, $62 for educational expenses, and the remainder toward his arrearage. In addition, because Father agreed to pay one-half of his income toward these amounts, his driving privileges were reinstated. On appeal, Mother contends that the trial court erred in modifying his child-support obligation and in reinstating Father’s driving privileges. We conclude that the trial court did not err in modifying Father’s child-support obligation. We also conclude that Father’s plan to pay one-half of his income toward his support obligation was a sufficient plan to warrant reinstatement of his driving privileges. We affirm. * * *

We recognize that Father’s arrearage is substantial—the trial court estimated Father to be at least $100,000.00 in arrears. Clearly, paying this arrearage in full will take many years, a fact the trial court acknowledged. However, the court also acknowledged that if Father is able to drive, the likelihood that he will continue to meet his support obligation increases. The trial court’s ultimate decision to reinstate Father’s driving privileges is in line with public policy. Our goal should be to ensure that an obligor meets his or her obligation and at times, the courts hold the key to incentivize — rather than discourage — continued employment to meet those obligations. Our Supreme Court has recognized that there may be a tipping point at which an obligor has no incentive to fulfill his or her support obligations. * * * Here, the trial court concluded that Father had established a plan to pay his arrearage and that reinstatement of his driving privileges made it more likely that Father would continue to meet his obligation. We conclude that the trial court did not err by reinstating Father’s driving privileges. Affirmed.

NAJAM, J., concurs.
ROBB, C.J., concurs in part and dissents in part with separate opinion. [which begins, at p. 14] I concur with the majority that the trial court did not err in modifying Father’s child support obligation as discussed in Part I, but respectfully dissent from its conclusion in Part II that the trial court did not err in reinstating Father’s driving privileges.

I agree with the majority that the language of section 31-16-12-11 is clear and unambiguous. Accordingly, deciding whether Father’s driving privileges could be reinstated is a question of law. It is not a question of weighing the evidence, but strictly a determination of whether the outcome is consistent with the legislative mandate. In order to have driving privileges reinstated, the statute requires as a matter of law that the obligor either pay the arrearage in full or establish a payment plan to pay the arrearage via income withholding order. Given that the two alternatives for reinstatement are to pay in full or establish a payment plan to pay, the “plain, ordinary, and usual meaning” of “a payment plan to pay the arrearage” is a plan that will pay the arrearage in full, not simply pay toward or pay down the arrearage. * * *

The statute requires “a payment plan to pay the arrearage” be established in order for the trial court to reinstate Father’s driving privileges. As Father’s plan will neither pay his arrearage nor does it require him to pay the maximum amount allowed by law, I would hold the trial court clearly erred in reinstating Father’s driving privileges. Accordingly, I dissent from Part II of the majority decision.

>In J. Michael Kummerer v. C. Richard Marshall , a 9-page opinion, Judge Vaidik writes:
J. Michael Kummerer appeals the trial court’s failure to award him prejudgment interest and its failure to grant his motion to correct errors. He contends that the decision to deny him prejudgment interest was contrary to law because contract damages could be determined by simple mathematical calculations. He also contends that the trial court abused its discretion in denying his motion to correct errors because the trial court did not make any findings of fact about whether damages were able to be determined by simple calculations before denying him prejudgment interest. Finding that prejudgment interest was not appropriate in this case because the trial court had to exercise its judgment in calculating damages, we affirm the trial court.
In Jeremiah Cline v. State of Indiana , a 16-page, 2-1 opinion with a dissent beginning on p. 9, Judge Bailey writes:
The Boone Circuit Court determined that Jeremiah Cline (“Cline”) is not required to register as a sex offender, but also determined that it lacked authority to order the removal of Cline’s name and information from the Indiana Sex Offender Registry (“the Registry”). Cline appeals and presents the sole issue of whether the trial court has authority to expunge Cline’s information from the Registry. We affirm. * * *

On July 26, 2011, Cline filed his “Amended Petition to Remove Petitioner From Sex Offender Registration Requirement.” (App. 20.) A hearing was conducted on July 27, 2011. On October 24, 2011, the trial court issued an order with specific findings. The trial court found that Cline had no obligation to continue to register as a sex offender, because application of the statutory change would constitute ex post facto punishment as to him. However, the trial court also found that it lacked authority to expunge Cline’s existing information from the Registry. This appeal ensued. * * *

Although Cline claims he will have to endure the stigma associated with registration even if he does not register in the future, the fact that Cline committed sex crimes is a matter of public record. We do not read the Wallace decision as broadly as does Cline; it does not insulate an offender from all punitive consequences associated with having committed his crimes. Furthermore, the statutory provision under which Cline sought relief does not include an expungement provision. We will not add such a provision. * * *

Cline has not demonstrated his entitlement to expungement as a judicial remedy; the trial court did not misapply the law. Accordingly, we affirm the trial court.

MATHIAS, J., concurs.
ROBB, C.J., dissents with opinion. * * *

This is a case about whether a person who should not have had to but was erroneously required to add his name and information to the registry in the first place is entitled to relief in the form of having his name and information removed. [ILB emphasis] The backdrop is Wallace, in which our supreme court held that the sex offender registration act was unconstitutional as applied to one who committed his offense before the act was enacted. See 905 N.E.2d at 384. Specifically, the court held that it “violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.” Id. The General Assembly responded by amending Indiana Code section 11-8-8-22 to address the supreme court’s ex post facto concern.

Thus, this case is also about interpreting and applying section 11-8-8-22. This section is poorly written and confusing. Nevertheless, a logical reading of the following subsections of section 11-8-8-22 determines the fate of Cline’s petition. * * *

The majority also supports its decision, in part, by contending that removal of Cline’s name and information from the registry would be pointless because Cline’s convictions would remain part of the public record even if he receives the relief he seeks. This implies that the registry is not harmful or punitive, and perhaps is merely a replica of the already-public criminal history of offenders. Our supreme court concluded that the registry is punitive for its relative excessiveness, especially, as the majority points out, because as formulated at the time of Wallace, there was “no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure.” Slip Op. at 6 (quoting Wallace, 905 N.E.2d at 384). As the majority notes, section 11-8-8-22 might have partially or fully addressed this concern.

Regardless, the supreme court concluded the registry is punitive for other reasons too: because it “impose[s] substantial disabilities on registrants,” Wallace, 905 N.E.2d at 380, “resembles the punishment of shaming,” is “comparable to conditions of supervised probation or parole,” id. at 381, and it “promote[s] community condemnation of the offender,” id. at 382 (quotation omitted). Therefore, it is incorrect to suggest that removal of Cline’s name from the registry would be pointless. To the extent the majority construes Cline’s request as one to eliminate all punitive consequences associated with having committed his offenses, I believe that to be a different issue.

For these reasons, I respectfully dissent.

ILB: This issue was the focus of several ILB entries this spring, including this entry from April 22, 2012 with the dual heading: "Ensuring the integrity of the sex offender list" and "Marion County repairs sex offender registry."

NFP civil opinions today (2):

Arnold Blevins v. Raymond Arthur Brassart (NFP)

J.H. and T.G. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Timothy Stevenson, Jr. v. State of Indiana (NFP)

Fredrick D. Gaither v. State of Indiana (NFP)

Derrick Rockingham v. State of Indiana (NFP)

Douglas Chubb v. State of Indiana (NFP)

Maurice Ervin v. State of Indiana (NFP)

Posted by Marcia Oddi on July 26, 2012 11:14 AM
Posted to Ind. App.Ct. Decisions