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Friday, October 30, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (2):

In Tina Carmer v. Scott Carmer, a 20-page ruling with a separate concurring opinion, Judge Mathias concludes:

The trial court did not err when it interpreted the parties’ prenuptial agreement. The trial court also did not err when it subtracted certain sums from Tina’s $70,000 payment under the terms of the agreement after the court awarded her non-marital assets at her request and due to her dissipation of Scott’s structured settlement payments. However, the trial court erred when it failed to consider Scott’s structured settlement payments in its calculation of Scott’s gross income for the purposes of child support. We therefore remand this case to the trial court for proceedings consistent with this opinion. * * *

May, J., concurs.
Robb, J., concurs in result in part with opinion. [which begins, at p. 17] I write separately to address only the first issue: whether the trial court abused its discretion when it failed to include Scott’s monthly structured settlement payments as income in the calculation of child support. * * *

Because the trial court’s decision was based on an improper legal standard, and subject to the caveat that the trial court should have the leeway on remand to make an “innovative” determination regarding the inclusion or exclusion in whole or in part of Scott’s structured settlement payments, I concur in result as to the child support issue. As to the remainder of the opinion, I concur in full.

In Brooks Berg v. State of Indiana , a 9-page opinion, Judge Najam writes:
Brooks Berg appeals his convictions for operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor. Berg raises a single issue for our review, namely, whether the State violated his double jeopardy rights under Richardson v. State, 717 N.E.2d 32 (Ind. 1999), when it used the evidence it had presented to the jury to support the reckless-driving charge to demonstrate the endangerment element of the operating-while-intoxicated charge. The State concedes on appeal that this use of the evidence resulted in a violation of Berg’s rights under the Richardson actual evidence test.

We reject Berg’s argument and the State’s concession, and we hold that the trial court did not violate Berg’s double jeopardy rights when it entered its judgment of conviction against him for both operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor. Thus, we affirm Berg’s convictions.

NFP civil decisions today (4):

Aundreia Dant v. Anthony J. Dant (mem. dec.)

S.W. v. A.W. (mem. dec.)

Rose Keen v. Terminix International Company Limited Partnership, Servicemaster Residential Commercial Services Limited Partnership, and Timothy Slocum (mem. dec.)

In Re J.H. (Minor Child), Child in Need of Services, and E.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (7):

Willie J. Herman, Jr. v. State of Indiana (mem. dec.)

Keith Wolfe v. State of Indiana (mem. dec.)

Willie J. Herman, Jr. v. State of Indiana (mem. dec.)

N.W. v. State of Indiana (mem. dec.)

Donald Snover v. State of Indiana (mem. dec.)

Carl Johnson v. State of Indiana (mem. dec.)

Aloric Carson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 30, 2015 11:02 AM
Posted to Ind. App.Ct. Decisions