« Ind. Law - The Fort Wayne Journal Gazette on the gay marriage kafuffle | Main | Ind. Decisions - 7th Circuit decides one Indiana case today »

Thursday, July 11, 2013

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

For publication opinions today (4):

In In the Matter of the Paternity and Maternity of Infant T., a 9-page opinion, Judge Najam writes:

In this nonadversarial proceeding, M.F. is the biological father of Infant T. Infant T. was born to S.T., who acted as a surrogate for M.F. and an unknown egg donor. During the pregnancy, M.F., S.T., and S.T.’s husband, C.T., jointly filed an agreed petition with the trial court to establish M.F.’s paternity and to “disestablish” S.T.’s maternity. The trial court denied the agreed petition and certified its order for interlocutory appeal, which we accepted. We address the following two issues:
1. Whether the trial court erred when it denied M.F.’s request to establish paternity.
2. Whether a surrogate may petition a court to disestablish maternity.
We reverse the trial court’s denial of M.F.’s request to establish paternity, but we affirm the trial court’s denial of S.T.’s request to disestablish maternity. Accordingly, we affirm in part, reverse in part, and remand with instructions. * * *

However, our holding does not exclude the indirect disestablishment of maternity, such as in Infant R. The indirect disestablishment of maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence, not simply by affidavit or stipulation. Infant R., 922 N.E.2d at 61-62. If the putative mother satisfies her burden of proof, the establishment of maternity in her would indirectly disestablish maternity in the birth mother.

But we are not presented with facts demonstrating maternity in any woman other than S.T. Indiana law presumes the birth mother of a child is the child’s biological mother. Id. at 61. “[T]his presumptive relationship will stand unless [another woman] establishes that she is, in fact, the biological mother of [the child].” Id. at 62. No other woman has petitioned the court to establish maternity. As such, the trial court properly dismissed S.T.’s petition to disestablish her maternity.

In Robert M. Gates v. City of Indianapolis, a 7-page opinion, Judge Najam writes:
Robert Gates appeals the trial court’s order denying his demand for a jury trial in this action in which the City of Indianapolis (“the City”) alleged that Gates violated three municipal ordinances [re curbing dog, etc.]. Gates presents a single issue for our review, namely, whether the trial court erred when it denied his demand for a jury trial. We reverse and remand with instructions. * * *

The nature of the underlying substantive claims brought against Gates is quasi-criminal, and he is entitled to a jury trial under Article I, Section 20 of the Indiana Constitution. We reverse and instruct the trial court to grant Gates’ jury trial request.

In Lindsay Tatusko v. State of Indiana , a 9-page opinion, Judge Najam writes:
Lindsay Tatusko appeals her convictions for forgery, a Class C felony, and theft, as a Class D felony, following a jury trial. Tatusko presents the following issues for our review: 1. Whether she was denied the effective assistance of trial counsel. 2. Whether the State presented sufficient evidence to support her forgery conviction. We affirm. * * *

Here, had the entire transaction been conducted on paper, Tatusko would have had to change the tip amount in writing, which would have satisfied the elements of the forgery statute, even according to Tatusko. Just because she changed the tip amount electronically does not mean that her conduct falls outside of the statute. Again, Indiana Code Section 26-2-8-106(c) provides that if a law requires a record to be in writing, or provides consequences if it is not, an electronic record satisfies the law. Accordingly, Tatusko’s electronic alteration of the authorized tip amount in Lee’s transaction constitutes forgery. The State presented sufficient evidence to support her forgery conviction.

In Kenneth Smith v. State of Indiana , a 9-page opinion, Judge Najam writes:
Kenneth Smith appeals the trial court’s order that he pay $1,380 in restitution to William Kirkham. Smith raises a single issue for our review, which we restate as the following two issues: 1. Whether the trial court abused its discretion when it attributed property missing from Kirkham’s house to Smith even though the State did not use that property to secure Smith’s conviction for theft, as a Class D felony; and 2. Whether the trial court adequately considered Smith’s ability to pay $230 per month in restitution when he acknowledged he was paying $240 per month for home detention fees and the court responded by suspending those fees until Smith had paid his restitution in full. We affirm.
NFP civil opinions today (2):

Cecilia Kelly v. GEPA Hotel Owner Indianapolis LLC, GEPA Hotel Operator Indianapolis LLC, and Schindler Elevator Corporation (NFP)

Dana L. Smith v. James L. Smith (NFP)

NFP criminal opinions today (2):

Paul Monet Fontaine v. State of Indiana (NFP)

David L. Howard v. State of Indiana (NFP)

Posted by Marcia Oddi on July 11, 2013 10:34 AM
Posted to Ind. App.Ct. Decisions