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Monday, May 11, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (3):

In Jennifer L. Barwick v. Joseph A. Ceruti, a 14-page opinion, Chief Judge Vaidik writes:

Jennifer Barwick (Mother) moved to Indiana from Canada in March 2013. She lived with Joseph Ceruti (Father) and became pregnant six weeks later. Mother and Father were married in May 2013. After marital difficulties, Mother returned to Canada three months after she arrived in Indiana. Father filed a petition for dissolution and a motion to preserve and retain jurisdiction of final orders for the child that was expected to be born on December 25, 2013. Following a hearing where Mother appeared telephonically, the trial court issued a December 2, 2013 order concluding that it had jurisdiction over the unborn child’s custody. When the child was born two weeks later, Mother did not tell Father about the child’s birth or include Father’s name on the birth certificate. On December 20, the Ontario Superior Court of Justice, which is the Canadian trial court, issued an ex parte order that K.M. would reside with Mother. In May 2014, the Indiana trial court held a hearing on the dissolution petition and awarded custody of the child to Father.

Mother argues that the trial court never obtained exclusive and continuing jurisdiction and, even if it did, the court should have deferred jurisdiction to the Canadian court when it became involved in the case at the end of December 2013. However, because the trial court made a child-custody determination, we find no error. Mother also argues that even if the Indiana court had jurisdiction, it should have relinquished it to Canada because Canada is a more appropriate forum. However, our review of the evidence reveals that Indiana was the appropriate forum, and the trial court did not err. We therefore affirm the trial court.

In Mary K. Davis v. State of Indiana, an 8-page opinion, Judge May writes:
Mary K. Davis appeals the denial of post-conviction relief. We reverse. * * *

Certain of the post-conviction court’s findings and conclusions were error. * * *

The remainder of the post-conviction court’s findings and conclusions are premised on the erroneous determination Davis’ probationary period began February 14, 2005, and ended February 14, 2009. * * *

As the post-conviction’s findings and conclusions were contrary to law, we reverse the denial of post-conviction relief, which subsequently reverses the trial court’s revocation of probation. Therefore, Davis should not be returned to incarceration as part of this matter.

In T.S. v.State of Indiana, a 9-page opinion, Chief Judge Vaidik writes:
The Indiana Supreme Court held in Smith v. State, 765 N.E.2d 578 (Ind. 2002), reh’g denied, that where the parties to criminal proceedings in question are not identical, the doctrine of judicial estoppel does not apply against the State.

T.S., a juvenile, argues that Smith does not apply to juvenile-adjudication proceedings because they are civil. We find, however, that the rationale for not applying judicial estoppel against the State in criminal proceedings applies equally in the context of juvenile-delinquency proceedings. We therefore affirm the trial court. * * *

Because juvenile-delinquency proceedings are civil proceedings, T.S. claims that Smith, a criminal case, does not apply here. We find, however, that the rationale for not applying judicial estoppel against the State in criminal proceedings applies equally in the context of juvenile-delinquency proceedings. Therefore, accepting a plea agreement from Leethanel based on one theory of the case and pursuing a delinquency adjudication against T.S. in a separate action based on an alternate theory cannot be construed as playing fast and loose with the courts. Moreover, applying judicial estoppel to juvenile-delinquency proceedings but not criminal proceedings would be illogical. That is, a juvenile would be immunized against an adjudication based on an adult defendant’s conviction, but there would be no correlating immunization if the juvenile was convicted first. Thus, we find that judicial estoppel does not apply to juvenile-delinquency proceedings for the same reasons that it does not apply to criminal proceedings. We therefore affirm the juvenile court.

NFP civil decisions today (2):

Senad Keserovic and M1 Transport, Llc v. Set Transport, Llc (mem. dec.)

Paul B. Deigan v. Shawn E. Deignan (mem. dec.)

NFP criminal decisions today (5):

Terry Lee McCollum v. State of Indiana (mem. dec.)

Donal Frazier v. State of Indiana (mem. dec.)

Bruce Jackson v. State of Indiana (mem. dec.)

Harlan T. Praul v. State of Indiana (mem. dec.)

Joshua Wayne Holliman v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 11, 2015 01:07 PM
Posted to Ind. App.Ct. Decisions