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Thursday, December 06, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

Matter of the Paternity of J.R.W.; Kevin L. Jemerson & Mamie Darlene Jemerson v. Jack Watterson & Nathanial Green - In this case, an 8-page opinion by Judge Darden, the issue is "Whether the Jemersons had standing as next friends to bring a paternity action on behalf of their maternal nephew, J.W., as his next friends when a panel of this court had previously held that their guardianship rights with respect to J.W. should be dissolved."

Tammy McKay (“Tammy”) and Jack began a romantic relationship when Tammy was already pregnant with another man’s child. Tammy gave birth to J.W. on December 25, 1995. Two days later, Jack executed a paternity affidavit, wherein he averred that he was J.W.’s father. Tammy and Jack married on April 28, 1996. Their union produced a daughter, B.W. The marriage ended in divorce on October 28, 2002, and the dissolution decree identified J.W. and B.W. as children of the marriage. The matter of J.W.’s paternity was not litigated during the divorce proceedings. The divorce court awarded Tammy custody of J.W. and B.W., granted Jack visitation rights, and ordered him to pay child support.

Subsequently, Tammy and Jack each remarried. In the fall of 2005, Tammy was diagnosed with terminal cancer. Tammy wrote a will in which she expressed her “strongest desire that no other relative of [her] children, including their non-custodial parent and natural father, be appointed guardian of [her] said children.” See Watterson v. Jemerson, No. 39A01-0609-CV-403, (Ind. Ct. App. April 16, 2007). She requested that her sister, Mamie Darlene Jemerson, be the guardian of J.W. and B.W. Soon thereafter, Mamie and Kevin Jemerson filed a petition for guardianship and a motion to appoint a guardian ad litem (“GAL”) for the children. The trial court granted the Jemersons’ motion to appoint a GAL. On March 22, 2006, the GAL recommended that the Jemersons be named guardians of J.W. and B.W. Tammy died four days later.

On April 6, 2006, the Jemersons filed an amended petition for guardianship. On the following day, the trial court granted temporary guardianship to the Jemersons, ordered visitation for Jack, and took the matter of permanent guardianship under advisement. On June 2, 2006, the trial court awarded the Jemersons permanent guardianship of B.W. and J.W., and imposed a visitation and child support order for Jack. On June 30, 2006, Jack filed a motion to correct error, challenging the trial court’s grant of guardianship to the Jemersons. The trial court conducted a hearing on Jack’s motion on July 31, 2006. On August 21, 2006, the trial court entered an order stating its reasons for awarding guardianship rights to the Jemersons and denied Jack’s motion. Jack appealed to this court. * * *

Because both Jack and Green – as the legal father and biological father, respectively – bear the duty of acting on behalf of J.W., no proper basis exists upon which the Jemersons may assert standing as J.W.’s next friends. The trial court properly granted Jack’s motion to dismiss for lack of standing because the Jemersons cannot be granted relief under any set of facts.

In Terrance Hood v. State of Indiana , a 10-page opinion, Judge Bailey writes:
Hood’s conviction for Voluntary Manslaughter must be reversed because evidence corroborative of his self-defense claim was erroneously excluded. However, there is sufficient evidence to permit his retrial on that charge. Because of the necessity of the reversal and retrial, we do not reach Hood’s claim of sentencing error.
NFP civil opinions today (0):

NFP criminal opinions today (5):

Vondregus Bailey v. State of Indiana (NFP)

James Drain v. State of Indiana (NFP)

Kevin Boese v. State of Indiana (NFP)

Richard Clark v. State of Indiana (NFP)

David Allen v. State of Indiana (NFP)

Posted by Marcia Oddi on December 6, 2007 12:52 PM
Posted to Ind. App.Ct. Decisions