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Thursday, February 09, 2017

Ind. Decisions - Rare written dissent filed in denial of petition to transfer

The case of Montgomery v. Montgomery was decided by the Court of Appeals on Sept. 8, 2016 (3rd case).

Transfer was applied for and the result should appear on the new Supreme Court transfer list next Monday, as "Transfer denied - All Justices concur, except" with J.David and C.J. Rush listed as dissenting.

However, in this case Justice David dissented with a 3-page opinion, in which Chief Justice Rush joined. It begins and concludes:

I respectfully dissent from the denial of transfer. In finding that the trial court’s order granting Mother’s petition to modify custody of A.M. was clearly erroneous, I am afraid the Court of Appeals engaged in impermissible reweighing of evidence . It seems to me that such a significant departure from accepted law warrants review by this Court and I would grant transfer to affirm the trial court’s order. * * *

To me, it seems the trial court’s findings here were not clearly erroneous and t he Court of Appeals should have afforded the trial court’s findings gr ea ter deference. While the high deference given to trial court in such matter s is not absolute, See Kirk, 770 N.E.2d at 307 n.5, I believe sufficient evidence existed here to support the trial court’s findings and the judgment . Thus, I would grant transfer and affirm the tria l court’s judgment.

Such written dissents to transfer decisions are rare. Here is one from Dec. 2, 2016, and one from April 3, 2013.

Posted by Marcia Oddi on February 9, 2017 04:24 PM
Posted to Indiana Transfer Lists