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Thursday, April 13, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (3):

In Wyatt Severance v. New Castle Community School Corporation a/k/a New Castle Career Center, and Turner Melton, a 13-page opinion, Judge Baker writes:

In 2013, Wyatt Severance and Turner Melton were both enrolled in a vocational education program operated by the New Castle Career Center, which is administered through the New Castle Community School Corporation (the “School”). A physical altercation between the two students resulted in a serious leg injury to Severance, who filed a civil complaint against the School, alleging negligence. The School moved for summary judgment on two grounds: first, that Severance was contributorily negligent in bringing about his injuries, thereby barring any recovery, and second, that the School did not breach its duty to Severance. During the summary judgment stage, Severance designated an expert affidavit, which the School moved to strike. The trial court granted the School’s motion to strike and the School’s motion for summary judgment. Finding that the trial court erred in granting the School’s motion to strike and that there are genuine issues of material fact as to whether the School breached its duty and whether Severance was contributorily negligent precluding summary judgment, we reverse and remand. * * *

Dr. Peterson’s affidavit relates to a dispositive issue in this case. Further, genuine issues of material fact exist as to whether the School breached its duty to protect Severance and whether Severance was contributorily negligent in a manner which proximately caused his injuries. The judgment of the trial court is reversed and remanded for further proceedings.

In Charles Cannon v. Kristy A. Caldwell , an 8-page opinion, Judge Crone writes:
Charles Cannon (“Father”) appeals the trial court’s order modifying his child support. Although Father’s notice of appeal was untimely, we conclude that an extraordinarily compelling reason exists to restore his forfeited right to appeal and decide his appeal based on the merits. In this case, the child support modification order is in clear violation of the Indiana Child Support Guidelines. This manifest injustice constitutes an extraordinarily compelling reason to restore Father’s right to appeal and requires the reversal of the child support modification order. Accordingly, we reverse and remand. * * *

Here, the scant record before us shows that Father receives SSI of $733 per month. However, the Indiana Child Support Guidelines specifically provide that means-tested public assistance programs, including SSI, are excluded from the definition of weekly gross income used to determine a parent’s child support obligation. Ind. Child Support Guideline 3(A)(1). “‘SSI is a federal social welfare program designed to assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual.’” McGill v. McGill, 801 N.E.2d 1249, 1252 (Ind. Ct. App. 2004) (quoting Cox v. Cox, 654 N.E.2d 275, 277 (Ind. Ct. App. 1995)). “As a matter of law, SSI recipients lack the money or means to satisfy child support obligations.” Id. (citing Cox, 654 N.E.2d at 277); see also Ward v. Ward, 763 N.E.2d 480, 482 (Ind. Ct. App. 2002) (“[T]his court has consistently held that SSI recipients, as a matter of law, cannot be held in contempt for failure to comply with child support orders.”). Thus, the child support modification order setting Father’s child support at $35 per week is on its face in clear violation of the Child Support Guidelines. We conclude that this obvious injustice is an extraordinarily compelling reason to restore Father’s forfeited right to appeal and decide the appeal on the merits. Unless and until our supreme court further defines extraordinarily compelling reasons and we can discern its actual elements rather than merely looking at the result, we must conclude that a manifestly unjust result constitutes an extraordinarily compelling reason to reach the merits of an otherwise forfeited appeal.

As for the merits of Father’s appeal, we have already concluded that the child support modification order is in violation of the Indiana Child Support Guidelines. Accordingly, we reverse and remand for proceedings consistent with this opinion.

In S.M. v. State of Indiana , a 10-page opinion, Judge Mathias writes:
S.M., a teenaged girl, was adjudicated a delinquent child for helping H.J., a teenaged boy, steal Lashawn Rogers’s (“Rogers”) car. She appeals from the true finding in Marion Superior Court that she committed what would be Level 6 felony theft and Class A misdemeanor criminal trespass if done by an adult. Because the true finding was supported by sufficient evidence, we affirm. * * *

S.M. challenges only her identification by Rogers as the girl at the gas station on December 6, 2015. See Appellant’s Br. at 16, Appellee’s Br. at 7. Rogers had three distinct occasions to observe the girl: once as Rogers pulled into the gas station parking space and worried that the girl would ask her for money, once when she tripped outside the gas station and addressed the boy’s offer to help her, and finally when she saw the girl sitting in the passenger’s seat of her car as it backed out of the parking space and drove away. The impression produced by those observations was clear and distinct enough that Rogers, without prompting or suggestion by the State’s agents, was able to pick out S.M. from a collection of ten to twenty pictures showing two to three different teenaged girls. Rogers then identified S.M. at the delinquency hearing as the girl at the gas station. If believed, Rogers’s testimony established S.M.’s guilt beyond a reasonable doubt. We will not re-evaluate Rogers’s credibility on appeal. * * *

As the prosecutor repeated no fewer than four times in his 150-word closing argument, “This case is about whether you believe [Mrs.] Rogers or not.” Tr. p. 142. The trial court believed her, and we cannot say that no reasonable trier of fact could have done the same. Its judgment is therefore affirmed.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (1):

Mauricio D. Sharp v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 13, 2017 12:43 PM
Posted to Ind. App.Ct. Decisions