The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 15 NFP)

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Thursday, May 17, 2007

Ind. Decisions - Court of Appeals issues 6 today (and 15 NFP)

For publication opinions today (6):

In Emma McPeek, et al. v. Charles McCardle , an 8-page opinion, Chief Judge Baker writes:

Appellants-plaintiffs Emma McPeek, Carroll VanTyle, and Brenda Allen (collectively, the Children) appeal from the trial court’s dismissal of their complaint seeking a declaratory judgment that the marriage of their mother, Edwina VanTyle McCardle, to appellee-defendant Charles McCardle was void. Additionally, Charles cross-appeals the trial court’s denial of his request for attorney fees. Finding that a marriage that complies with all Indiana requirements but fails to comply with the laws of the state in which it is solemnized is valid in this State, and finding no other error, we affirm the judgment of the trial court. * * *

It is generally true that the validity of a marriage is determined by the law of the place of its celebration. Gunter v. Dealer’s Transp. Co., 120 Ind. App. 409, 414, 91 N.E.2d 377, 379 (1950). Nearly always, however, this rule is applied to uphold an out-of-state marriage that would otherwise be invalid pursuant to Indiana law or public policy. See, e.g., Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (recognizing a Tennessee marriage between first cousins that could not have been entered into validly between Indiana residents). It is illogical to reverse that rule such that a marriage that would otherwise be valid in Indiana is void because it is invalid pursuant to a sister state’s law or public policy.³ There is simply no reason, whether based on Indiana statute or public policy, to invalidate a marriage that complies with both. We hold, therefore, that where, as here, a couple has complied with Indiana’s requirements regarding marriage licenses, certificates, and solemnizations, their marriage is not void even if the ceremony took place in another state and did not comply with that state’s law or public policy. Thus, we conclude that the trial court properly dismissed the Children’s complaint.

Charles cross-appeals, arguing that he is entitled to attorney fees because the Children’s action was frivolous and because they relied upon Emma’s affidavit in bad faith. Inasmuch as this is an issue of first impression in Indiana, we cannot conclude that the action was frivolous.
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³We acknowledge that the Indiana Attorney General reached the opposite conclusion. See 2004 Ind. OAG No. 4, 2004 WL 1876176 (Ind. Atty. Gen. 2004). It is well established, however, that Attorney General Opinions are without precedential effect and are not binding on this court. Common Council of the City of Peru v. Peru Daily Tribune, Inc., 440 N.E.2d 726, 728 n.4 (Ind. Ct. App. 1982). Thus, we need not, and choose not to, adopt the Attorney General’s analysis of this issue.

Lisa A. Tompa v. Edward S. Tompa - "Here, we are faced with the unusual situation that the parents convened a panel to investigate, evaluate and determine, in loco parentis, a parenting plan tailored to the specific needs of H.T. and S.T.. The unambiguous language of the Summary Disposition Order notified the parties that, even though parenting time would be slowly increased, an ultimate recommendation would still be forthcoming. Faced with the Panel’s ultimate suggestion of equal-time parenting time and the flexible nature of the Parenting Time Guidelines, we cannot conclude that the trial court clearly erred in enlarging Edward’s parenting time by adopting the equal-time parenting time arrangement."

Kevin Hightower v. State of Indiana - "Kevin Hightower appeals his convictions and sentences for corrupt business influence, three counts of theft, conspiracy to commit bribery, and conspiracy to commit forgery. We affirm but remand with instructions."

Paul Kien v. State of Indiana - "Following his three convictions for molesting his former girlfriend’s five-year-old daughter, Paul Kien appeals the post-conviction court’s denial of his petition for post-conviction relief. Specifically, Kien contends that his trial counsel was ineffective for failing to investigate and present evidence that he was not the one who molested the victim and for failing to challenge the victim’s competency. Because the evidence that Kien claims shows that he did not molest the victim is inadmissible, trial counsel cannot be deemed ineffective for failing to investigate and present it. In addition, because there is no evidence that the victim was incompetent, trial counsel was not ineffective for failing to challenge her competency. We therefore affirm the post-conviction court."

Sophia Willis v. State of Indiana - "We sympathize with Willis’s argument that she is a single parent who is doing the best that she can, but we cannot condone her choice to whip her child with an extension cord to the point of causing him bruises and extended pain. The trial court is in the best position to determine what is reasonable under any given circumstances, and we must give substantial deference to the trial court’s decision herein. Willis’s argument that her behavior was justified under the circumstances is a request that we reweigh the evidence—a practice in which we do not engage when considering the sufficiency of the evidence. See Mitchell, 813 N.E.2d at 428 (finding that father’s argument that his actions were justified, not excessive, and merely parental discipline was an invitation to reweigh the evidence). We acknowledge that this was a closer case than some of the examples cited above, but ultimately, we cannot say that the trial court erred in finding sufficient evidence to convict Willis of class A misdemeanor battery on a child. The judgment of the trial court is affirmed."

James C. Absher v. State of Indiana - "James C. Absher appeals his convictions for three counts of Child Molesting, two as class A felonies and one as a class C felony, arguing that the trial court erroneously allowed the State to amend its charging information after the omnibus date. * * * Based on the foregoing, we conclude that while the trial court’s decision to allow the State to amend its charging information was in contravention of I.C. § 35-34-1-5(b), Absher failed to preserve this issue for appeal. Additionally, in failing to provide a single cogent argument with citation to authority supporting his legal conclusions that his trial was fundamentally unfair and that he received ineffective assistance of trial counsel, Absher also failed to successfully invoke the doctrine of fundamental error. Judgment affirmed. "

NFP civil opinions today (3):

In JP Morgan Chase Bank, N.A. v. Everhome Mortgage Company (NFP) , a 6-page opinion, Judge Bailey writes:

Appellant-Plaintiff/Cross-Defendant JPMorgan Chase Bank, N.A., successor to Bank One, N.A. (“Chase Bank”) appeals a partial summary judgment ruling in a consolidated action involving complaints by Chase Bank and Appellee-Plaintiff/Cross-Defendant EverHome Mortgage Company, successor to Nexstar Financial Corporation (“EverHome”), seeking to foreclose upon real estate purchased by Appellee-Defendant Rita Nicholson f/k/a Rita Campbell (“Nicholson”). We dismiss.

Issues. Chase Bank raises the sole issue of whether the trial court properly granted EverHome partial summary judgment assigning priority to its mortgage lien. We raise a single issue sua sponte: whether this Court has jurisdiction over this purported appeal. * * *

Because Chase Bank attempts to appeal an interlocutory order as a final judgment, without certification, the Court of Appeals is without jurisdiction to address the appeal. See Anonymous Doctor A v. Sherrard, 783 N.E.2d 296, 298 (Ind. Ct. App. 2003), reh’g denied. Accordingly, we dismiss the purported appeal.

John Kadish, Anita Kadish, and 2 Dreams, LLC v. Plan Commission of Porter Co. (NFP) - "The Plan Commission did not ban the subdivision because of the use of septic systems in general, it merely determined that the Kadishes failed to offer sufficient evidence to show that their proposed drainage plan on the lots would comply with the relevant ordinance provisions as well as other applicable state laws and regulations. In short, the Kadishes failed to offer specific evidence to support a determination that each lot could support a septic system. As a result, we conclude that the trial court properly denied the Kadishes’ writ of certiorari, and the Plan Commission’s decision stands."

Christine Davies v. Linda Land (NFP) - "Christine Davies appeals the judgment in her personal injury claim against Linda Land, personal representative of the Unsupervised Estate of George Land. Davies raises two issues, which we revise and restate as: I. Whether the trial court erred when it instructed the jury regarding Ind. Code § 9-21-8-24; and II. Whether the evidence is sufficient to support the jury’s verdict. We affirm."

NFP criminal opinions today (12):

Dennis Burgher v. State of Indiana (NFP)

Christine Patrick v. State of Indiana (NFP)

Timothy Newby v. State of Indiana (NFP)

Ronald Thrash v. State of Indiana (NFP)

Marlon M. Banks v. State of Indiana (NFP)

Bennie Lee Riley, Jr. v. State of Indiana (NFP)

Jason R. Bohlinger v. State of Indiana (NFP)

Lamont Perkins v. State of Indiana (NFP)

Steven Barlow v. State of Indiana (NFP)

Ryan Baker v. State of Indiana (NFP)

Terry A. Merriweather v. State of Indiana (NFP)