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Thursday, March 09, 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 18 NFP memorandum decision(s))

For publication opinions today (2):

In Jay Garrison v. Pamela Garrison, an 8-page opinion, Sr. Judge Shepard writes:

When someone on his deathbed transfers his property under circumstances where competence may be in question, how should the burden of proof concerning the transfer be applied?g the transfer be applied? * * *

Jay argues that 1) the trial court erroneously concluded it was a gift causa mortis as opposed to a gift inter vivos, 2) applied the wrong standard of review, and 3) based its decision on insufficient evidence.

Pamela raised a straight claim of incompetence in her petition to recover assets. A review of a variety of standards of review, burdens of proof, and burdens of going forward, will aid in resolving this appeal. * * *

Certain transfers are viewed differently based on the relationship of the donor and donee. * * *

Inasmuch as Thomas and Jay were father and son, the presumption of undue influence arose with respect to the transfer. Jay presented testimony that Thomas was competent at the time of the transfer, and that Jay possessed certificates of title to the two vehicles dated July 30, 2015. Pamela, however, presented testimonial evidence of Thomas’ incompetency before and at the time of transfer. The trial court found the evidence of competency was evenly split. Jay, therefore, has not rebutted the presumption of undue influence, and the estate is entitled to recovery of the vehicles.

Conclusion. For the foregoing reasons, we affirm the decision of the trial court.

In Fazia Deen-Bacchus v. Harold M. Bacchus, Jr., a 10-page opinion, Judge Najam writes:
Fazia Deen-Bacchus (“Wife”) appeals the dissolution court’s February 2016 order in which the court directed Harold M. Bacchus, Jr. (“Husband”) to promptly transfer certain amounts from three investment accounts (“the investment accounts”) to Wife. Wife raises a single issue for our review, which we restate as follows: whether the dissolution court erroneously interpreted its January 2011 property distribution order, in which the court had set aside the investment accounts to Wife as “her property,” when the court ordered Husband in February of 2016 to transfer only the January 2011 value of the investment accounts to Wife. We reverse and remand with instructions. * * *

In sum, the parties and the dissolution court had the opportunity to clarify any ambiguities in the January 2011 order within the time prior to the court’s judgment on the motions to correct error that were filed on that order, yet neither the parties nor the court suggested that the language of the January 2011 order to distribute the investment accounts to Wife was ambiguous. And it was not ambiguous; the order plainly and unmistakably identifies the investment accounts, not a certain value of the accounts, as Wife’s property. Accordingly, the dissolution court’s February 2016 order to the contrary is erroneous. We reverse the February 2016 order on this issue and remand with instructions that the dissolution court order Husband transfer ownership of the investment accounts to Wife and to enter any other findings and conclusions the court deems appropriate that are not inconsistent with this opinion.

NFP civil decisions today (6):

Gasser Chair Company, Inc. v. Marlene J. Nordengreen (mem. dec.)

Neidlinger Trust #0801, by John P. Neidlinger and Casey Neidlinger, Trustees v. Michael S. Lewallen and JMJ Farms, LLC (mem. dec.)

Elizabeth (Newman) Lewis v. David Newman (mem. dec.)

In the Matter of: V.G. (Minor Child), Child in Need of Services and R.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of R.Y. and B.H. (Minor Children) Children in Need of Services, S.H. v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent Child Relationship of: A.P. & D.P. (Minor Children) and, J.P. (Father) and A.M. (Mother) (mem. dec.)

NFP juvenile and criminal decisions today (12):

Darrell Berry v. State of Indiana (mem.dec.)

Robin Dalekilgore Peppers v. State of Indiana (mem. dec.)

Alan Ponce-Gomez v. State of Indiana (mem. dec.)

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

Rodrick Osborn Sheron v. State of Indiana (mem. dec.)

Justin Rhymer v. State of Indiana (mem. dec.)

Calvin McGregory v. State of Indiana (mem. dec.)

Devon R. Rush v. State of Indiana (mem. dec.)

Juan Escatel-Flores v. State of Indiana (mem. dec.)

Kevin Chadwick v. State of Indiana (mem. dec.)

Ira Steven Link v. State of Indiana (mem. dec.)

Devon L. Hunter v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 9, 2017 11:14 AM
Posted to Ind. App.Ct. Decisions