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Tuesday, July 15, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

In Jacqueline Myers v. Mark Myers, a 14-page opinion, Chief Judge Vaidik writes:

Jacqueline Myers (“Mother”) filed a notice of intent to relocate from Indiana to Texas with her daughter, fourteen-year-old H.M. Mark Myers (“Father”) objected and filed a motion to prevent Mother’s relocation with H.M., which the trial court granted following an evidentiary hearing. Mother now appeals. She contends that because H.M. is not a child of the marriage, Father could not object to her relocation and the trial court should not have entertained issues related to H.M.’s custody. She also argues that the court erred by denying her relocation request.

We conclude that the presumption that H.M. is a child of the marriage has not been rebutted; thus, H.M.’s relocation was properly before the court upon Father’s valid objection. We also conclude that the trial court did not err in finding that Mother did not meet her burden of proof in seeking to relocate. We do find, however, that the trial court erred in ordering that Father would receive automatic physical custody of H.M. if Mother moved to Texas. We affirm in part and reverse in part.

In In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor, a 26-page, 2-1 opinion, Judge Riley writes:
Appellant-Respondent, Brooke Neuhoff (Mother), appeals the trial court’s Order awarding visitation with her minor child to the paternal grandparents, Appellees-Petitioners, Scott A. Ubelhor (Grandfather) and Angela S. Ubelhor (Grandmother) (collectively, Grandparents). * * *

The trial court’s Order/Revised Order awarding visitation to Grandparents is hereby vacated, and Mother’s discretion to determine the level of Grandparents’ visitation in accordance with her parental rights and the Child’s best interests is restored.

Based on the foregoing, we conclude that the trial court clearly erred by awarding visitation to Grandparents. Reversed.

MAY, J. concurs
VAIDIK, C. J. dissents with separate opinion [which begins at p. 18 of 26] The majority concludes that the trial court erred by awarding visitation to Scott and Angela Ubelhor (“Grandparents”). Because I believe the trial court did not err, I respectfully dissent.

In Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased, and Drayden Powell, Deceased v. James E. Szymanowki, M.D. and Gyn, Ltd., Inc., and Joseph B. Clemente, M.D. , a 14-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that (1) the trial court properly concluded that Dr. Brickner’s testimony did not create a genuine issue of material fact as to the liability of Dr. Szymanowski; (2) GYN cannot be held vicariously liable for the perceived acts of medical malpractice committed by Dr. Smith when Dr. Smith’s conduct was never reviewed by the medical review panel; and (3) the trial court properly concluded that no recovery exists for the 2007 death of a child not born alive under the Child Wrongful Death Statute, as amended.
In Juan Manzano v. State of Indiana, a 14-page opinion, Judge Mathias writes:
In 1997, in Madison Circuit Court, Juan Manzano (“Manzano”) pleaded guilty to and was convicted of Class A felony rape and ordered to serve fifty years executed in the Department of Correction. Manzano has now filed a petition for post-conviction relief arguing that his trial counsel and appellate counsel were ineffective. The post-conviction court denied his petition, and Manzano appeals.

Concluding that Manzano did not receive ineffective assistance of trial or appellate counsel, we affirm.

In Antonio L. Vaughn v. State of Indiana; a 26-page opinion, Judge Kirsch concludes, after covering the other issues in the case:
Here, in the trial court’s oral sentencing statement, it imposed a three-year sentence for Vaughn’s conviction for Class D felony maintaining a common nuisance. Sent. Tr. at 16. However, the trial court’s written sentencing imposed a three-and-a-half year sentence. Appellant’s App. at 20. The maximum sentence for a Class D felony is three years. Ind. Code § 35-50-2-7(a). We believe that it was the trial court’s unambiguous intent to sentence Vaughn to three years for his Class D felony conviction. Therefore, the written sentencing statement and the abstract of judgment contain clerical errors. We remand to the trial court to correct these errors and reflect that Vaughn’s sentence for his maintaining a common nuisance conviction is three years. Affirmed and remanded.
NFP civil opinions today (4):

In the Matter of J.W., A Child in Need of Services J.W. (Minor Child), and M.K. (Mother), & D.W. (Father) v. The Indiana Department of Child Services (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of W.H., Minor Child, and His Mother, J.F., J.F. v. Indiana Department of Child Services (NFP)

Alan R. Kohlhaas, on behalf of himself and all others similarly situated v. Hidden Valley Lake Property Owners Association, Inc., and Robert A. Will, William Acra, Carl Adkins, et al. (NFP)

James E. Manley v. Monroe County Prosecutor (NFP)

NFP criminal opinions today (7):

Paul A. Croucher v. State of Indiana (NFP)

Christopher Anderson v. State of Indiana (NFP)

Brandon Hicks v. State of Indiana (NFP)

Cynthia Marx v. State of Indiana (NFP)

Brian Baxter v. State of Indiana (NFP)

James Washington v. State of Indiana (NFP)

Jerrimica T. Madding v. State of Indiana (NFP)

Posted by Marcia Oddi on July 15, 2014 12:40 PM
Posted to Ind. App.Ct. Decisions