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Tuesday, April 22, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Shelly Bailey v. Lance Bailey, a 12-page, 2-1 opinion, Judge Barnes writes:

The sole issue we address is whether the trial court erred in modifying custody when neither party requested a modification of custody. * * *

In sum, Mother’s agreement that the trial court could enter a Parallel Parenting Order was in no way a concession that the trial court could modify the children’s physical custody to joint custody. Neither Mother nor Father ever filed a petition requesting a change in custody. Furthermore, neither party gave any hint during the evidentiary hearing that he or she desired a change in custody. * * *

We therefore conclude the trial court abused its discretion in sua sponte modifying physical custody of the children. * * *

We reverse the trial court’s modification of physical custody of the children and remand for the trial court to make all necessary corrections to its May 23, 2013 order to reflect this reversal, including its recalculation of Father’s child support obligation. The Parallel Parenting provision of that order may remain in effect, on condition that it is revised to reflect Mother’s primary physical custody of the children and Father’s scheduled visitation. Reversed and remanded.

CRONE, J., concurs.
BAKER, J., dissents with separate opinion. [which begins, at p. 10] I respectfully dissent. As acknowledged by the majority, “[c]ounsel for Mother agreed that the trial court had [the] power” to enter a parallel parenting time order based on the pleadings.

In In the Matter of the Adoption of B.C.H., a Minor, an 18-page opinion with a concurring opinion, Judge Pyle writes:
T.H. (“Grandfather”) and C.H. (“Grandmother”) (collectively, “Grandparents”) appeal the trial court’s order denying their motion for relief from judgment and motion to correct error concerning their son-in-law’s (“Stepfather”) adoption of their minor granddaughter, B.C.H. We affirm. * * *

MATHIAS, J., concurs in result with opinion.
BRADFORD, J., concurs.

[J.Mathias concurring opinion begins on p. 17] Because I would conclude that Stepfather was required to obtain Grandparents’ consent to his adoption of B.C.H. pursuant to Indiana Code section 31-19-9-1(a)(3), but that Grandparents had actual notice of the adoption proceedings and did not attempt to contest the adoption, I concur in result. * * *

Although Grandparents’ consent to the adoption was not sought, Grandparents had actual notice that Stepfather had initiated adoption proceedings. But Grandparents failed to intervene in or to contest the adoption proceedings; therefore, I would hold that Grandparents cannot challenge the decree of adoption at this late date. For this reason, I concur in the result reached by the majority.

In Randy E. Black v. State of Indiana, a 12-page opinion, Judge Barnes writes:
Randy Black appeals his conviction for Class C felony forgery.

Black raises two issues, which we restate as: I. whether the trial court erred by not ruling on Black’s pro se request for an early trial; and II. whether trial counsel was ineffective for not pursuing an early trial. * * *

Black has not established that the trial court was required to respond to his pro se motion for an early trial or that trial counsel was ineffective for failing to pursue and early trial or discharge. We affirm.

NFP civil opinions today (1):

State of Indiana, Indiana Bureau of Motor Vehicles, and Kent Schroder as Commissioner of Moter Vehicles v. Matthew E. Patty (NFP)

NFP criminal opinions today (3):

Desmond E. Lewis v. State of Indiana (NFP)

Corey Bates v. State of Indiana (NFP)

Conway Jefferson v. State of Indiana (NFP)

Posted by Marcia Oddi on April 22, 2014 11:24 AM
Posted to Ind. App.Ct. Decisions