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Thursday, August 09, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Daniel Sandlin v. Tamara Sandlin , an 11page opinion, Chief Judge Robb writes:

Several months after the dissolution of the marriage of Daniel Sandlin (“Father”) and Tamara Sandlin (“Mother”), Father filed a verified motion for emergency hearing and modification of custody, and Mother filed a verified petition to modify child support. Following a hearing, the trial court entered an order which Father now appeals and Mother cross appeals.

Father does not challenge the trial court’s order to modify child support, but raises two challenges to the trial court’s calculations in doing so. We expand and restate Father’s challenges as four issues: 1) whether the trial court improperly failed to conclude Mother voluntarily left her former job and thus failed to impute income to Mother; 2) whether the trial court miscalculated Mother’s current income; 3) whether the trial court improperly failed to explicitly order that Father cease paying to Mother an annual clothing allowance for the children; and 4) whether the trial court incorrectly determined the number of overnights for which Father should receive parenting time credit toward his child support obligations. On cross appeal, Mother agrees with Father’s assessment of and challenge to the trial court’s determination of Father’s parenting time credit and requests we make this correction without resorting to remand.

We conclude the trial court correctly did not impute income to Mother, but improperly failed to calculate Mother’s current income based on the evidence, and improperly failed to explicitly order that Father cease paying to Mother a clothing allowance. We also conclude that, based on the parties’ apparent appellate agreement, Father’s parenting time credit should be substantially reduced. Therefore, we reverse and remand with instructions for the trial court to review the evidence presented without the need to hold an additional hearing, and amend its order modifying child support as directed.

In Guydell Watson v. State of Indiana , a 13-page opinion, Sr. Judge Darden writes:
Issues. 1. Whether the trial court abused its discretion in instructing the jury. 2. Whether the trial court abused its discretion in refusing to appoint an expert at public expense. 3. Whether the trial court improperly granted the State’s motion in limine. * * *

[1] Accordingly, we find that operating a vehicle with a BAC of at least .08 percent but less than .15 percent is an inherently lesser-included offense of operating a vehicle with a BAC of at least .15 percent. We therefore find no abuse of discretion in instructing the jury on operating a vehicle while intoxicated as a class C misdemeanor.

[2] Watson next asserts that the trial court improperly denied his request for expert witness funds, where he sought to hire an expert to decipher the results of tests performed on the Datamaster used by Officer Holtzleiter. * * *

Watson failed to meet his burden of demonstrating a need for the appointment of an expert. We therefore find no abuse of discretion in denying Watson public funds with which to hire an expert witness.

[3] Watson asserts that the trial court improperly granted the State’s motion in limine, which sought to exclude any evidence regarding the Datamaster’s repair history. Watson argues that “[a]s far as evidence of guilt, . . . there were the error reports of the Datamaster that seemed ripe for review by an independent expert witness.” * * *

In this case, Watson fails to argue, or cite to that portion of the transcript reflecting such an argument, if any, that he requested relief during the trial from the trial court’s prior ruling on the motion in limine or otherwise sought to present any evidence regarding the Datamaster’s repair or test records. Watson therefore has waived his arguments regarding the trial court’s granting of the State’s motion in limine and exclusion of evidence.

NFP civil opinions today (4):

Nicole (Mooney) Thompson v. Terry Mooney, Jr. (NFP)

In Indiana Bureau of Motor Vehicles v. Katherine Linton-Waltman (NFP), a 5-page opinion, Sr. Judge Darden writes:

Issue. Whether the trial court’s order can be reviewed under the public interest exception to the mootness doctrine. * * *

BMV contends that the trial court misinterpreted the interplay among Indiana Code sections 1, 3, and 6.5 in its order granting Linton-Waltman’s petition for a hardship license and in its order denying BMV’s motion for relief from judgment. BMV recognizes that Linton-Waltman’s suspension has already expired; therefore, the question is moot as to this particular controversy. BMV argues, however, that the public interest exception applies “because the issue is likely to recur, given the frequency of driver’s license suspensions, and because granting a [hardship] license to a driver who has violated the law involves public safety concerns.” BMV Br. at 4 n.1 (citing Silverman v. Fifer, 837 N.E.2d 186, 187 (Ind. Ct. App. 2005) (holding that licensing issues, though moot, should be addressed because the issue is “liable to recur and involves issues related to public safety”). “In such cases, we may, at our discretion, make an exception to the mootness doctrine and address the merits of the case.” Id.

Our research discloses that Indiana Code section 9-24-15-3 has been amended, and now reads in part that a person’s petition for a hardship license must include information that the petitioner has never been “previously suspended.” This version of the statute became effective on July 1, 2012. See P.L. 125-2012 § 217. While the issue raised is related to public safety, the specific issue is not liable to recur because the change in the statute’s language is significant. We will not address the merits of the moot issue of this case.2
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2 BMV also alleges that its motion for relief from judgment was erroneously denied on a second basis pursuant to Indiana Code section 9-24-15-6.5. Our reading of the trial court’s order does not support BMV’s allegation.

Tina Glover v. Indiana Family and Social Services Administration (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: V.B. and Y.B. v. The Indiana Dept. of Child Advocates, Inc. (NFP)

NFP criminal opinions today (6):

Todd Slavin v. State of Indiana (NFP)

James A. Carr v. State of Indiana (NFP)

Gregory A. Smyser v. State of Indiana (NFP)

Robert Oldham v. State of Indiana (NFP)

Marquise T. Holmes v. State of Indiana (NFP)

Anthony W. Smith, Bobby J. McDaniel v. State of Indiana (NFP)

Posted by Marcia Oddi on August 9, 2012 12:51 PM
Posted to Ind. App.Ct. Decisions