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Thursday, April 13, 2006

Ind. Decisions - Three today from the Court of Appeals

In William W. Pond v. B. Paul McNellis, et al, a 33-page opinion, Judge Sharpnack writes:

William Pond appeals the trial court’s grant of summary judgment to Paul McNellis and Linda Chrzan and denial of his motion for summary judgment. Pond raises one issue, which we revise and restate as whether the trial court erred by granting McNellis and Chrzan’s motion for summary judgment and denying Pond’s motion for summary judgment concerning his request for restitution for attorney fees paid to McNellis and Chrzan, his ex-wife’s attorneys. We affirm in part, reverse in part, and remand.

The relevant facts follow. This is the fourth appeal concerning the dissolution of marriage between Pond and Brenda Armentrout (formerly Pond). * * *

In summary, the trial court should have denied McNellis and Chrzan’s motion for summary judgment. The trial court should have granted Pond’s motion for summary judgment to the extent that McNellis and Chrzan were liable for restitution, but denied summary judgment regarding the amount of attorney fees, which remains an issue to be decided by the trial court. For the foregoing reasons, we reverse and remand the trial court’s grant of summary judgment to McNellis and Chrzan and affirm in part, and reverse in part, the trial court’s denial of summary judgment to Pond.

In John E. Moyer and Angela R. Moyer v. Three Unnamed Physicians, an 18-page opinion, Judge Crone concludes:
Even if we were to agree with the Moyers’ argument that the occurrence-based statute is unconstitutional as applied to them, we would reach the same result of affirming the trial court’s summary judgment order. As explained in Booth, claimants that discover alleged malpractice before the statutory deadline with insufficient time to file suit, must initiate their actions within a reasonable time. 839 N.E.2d at 1172. As discussed above with regard to the Moyers’ claim against Dr. Zemstov, eighteen months passed between the discovery date—May 1, 2002—and the date upon which the Moyers filed their malpractice complaint—November 17, 2003. In our view, this delay was unreasonable. In sum, the trial court did not err in entering summary judgment in favor of Dr. Chuang and Dr. Zemstov.
In In the Matter of Infant Girl W v. Morgan County FCS, a 41-page opinion (with a dissent by Judge Najam beginning on page 31), Judge Baker writes:
This is a consolidated appeal, and all of the issues presented herein involve M.A.H., an eighteen-month-old girl, and the desire of her foster parents, who have cared for M.A.H. since she was two days old, to adopt her and become a legally-recognized family unit. M.A.H.’s foster parents, R.K.H. and K.A.B., are an unmarried couple. Everyone involved in this case, including the Morgan County Office of Family and Children (OFC) and the judge who has blocked the adoption, believes that R.K.H. and K.A.B. have provided a loving, supportive, healthy, and happy home for M.A.H., and everyone except the Morgan County Juvenile Court believes that it is in the best interests of M.A.H. that the adoption proceed. Although this appeal presents a number of issues, the primary question we must resolve is one of statutory interpretation, namely, whether the Indiana Adoption Act permits an unmarried couple—any unmarried couple, regardless of gender or sexual orientation—to file a joint petition for adoption.

The first set of issues concerns M.A.H.’s adoption in Marion County (the adoption case). In the adoption case, appellant OFC argues that the Marion Probate Court erred in granting the joint adoption petition of appellees-petitioners R.K.H. and K.A.B. (the Parents) because the Morgan Circuit Court opposed it and because Indiana law limits adoption to married couples and to individuals. Concluding that the Probate Court properly exercised jurisdiction over the Parents’ joint petition and that petition was properly granted, we affirm the judgment of the Probate Court.

The second set of issues surrounds M.A.H.’s Child In Need of Services (CHINS) proceedings in Morgan County (the CHINS case). In the CHINS case, appellants-intervenors the Parents argue that the Morgan Juvenile Court erred in refusing to dismiss the CHINS action and in voiding the Probate Court’s adoption decree. Specifically, the Parents argue that these orders were erroneous because the adoption satisfied M.A.H.’s dispositional goal and because the Juvenile Court was not entitled to treat the final judgment of a sister court as void. Concluding, among other things, that the Juvenile Court improperly refused to dismiss the CHINS proceeding, we reverse the judgment of the Juvenile Court. * * *

CONCLUSION. In sum, we have determined that the Marion Probate Court properly exercised jurisdiction over the adoption case and properly granted the Parents’ joint petition for adoption. We have also concluded that the Morgan Juvenile Court erred in refusing to dismiss the CHINS case and in treating the adoption decree as void.

We affirm the judgment of the Marion Probate Court.

We reverse the judgment of the Morgan Juvenile Court and remand with instructions to dismiss the CHINS and TPR cases.

VAIDIK, J., concurs.
NAJAM, J., dissents with opinion.

I respectfully dissent. The Adoption Act neither authorizes nor permits a joint petition for adoption by unmarried petitioners. I would hold that Indiana law does not allow an unmarried couple, regardless of their gender or sexual orientation, to file a joint petition to adopt a minor child.

For more on this case, see this Feb. 10, 2006 ILB entry headed "Morgan County lesbian couple fight to keep child" that begins:
On October 15th, 2005 the ILB had an entry quoting from an AP story that a "lesbian couple from Morgan County has gone to the Indiana Court of Appeals to win the adoption of a 1-year-old girl approved by a judge in one county but denied by a judge in another." Today the case was argued before the Court of Appeals.

Posted by Marcia Oddi on April 13, 2006 10:21 AM
Posted to Ind. App.Ct. Decisions