« Ind. Decisions - 7th Circuit issues on Indiana decision today | Main | Law - "Former fed Blakey gets top Cook County corruption-fighting post" »

Thursday, February 19, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

Elizabeth and Terry Baker v. Donnie Lee is a grandparent visitation case where the paternal grandmother (Baker) adopted the children and the trial court awarded paternal grandfather (Lee) visitation. In a 7-page opinion, Judge Bailey writes:

Issue: whether the trial court erred in concluding that Lee had standing to pursue his right to grandparent visitation with the Children after their adoption by the Bakers. * * *

The Bakers filed an Indiana Trial Rule 12(B)(6) motion to dismiss Lee’s petition for failure to state a claim upon which relief could be granted. They contended that Lee lacked standing to pursue visitation with the Children after the adoption because (1) he was no longer a “grandfather,” and (2) he had not previously established visitation rights under the Grandparent Visitation Act, Indiana Code Section 31-17-5-1 et seq. (“the GVA”). * * *

We find that Indiana Code Section 31-17-5-9 clearly permits grandparent visitation to survive adoption of a child by another biological grandparent. The legislature did not carve out an exception for an adoptive biological grandparent who is married to a non-relative of the adoptee(s). It is logical to assume that many, possibly most, adoptive parents have a spouse who is also an adopting parent. In essence, the Legislature did not require that every party to the adoption be related to the adopted child or children.

Moreover, we have long recognized that our Legislature intended to extend special protection to existing grandparent/grandchild ties in providing for post-adoptive visitation. * * *

The visitation order from the guardianship court, grounded in Lee’s statutory right to seek grandparent visitation, predated the adoption. The GVA right to visitation is survivable, Ind. Code § 31-17-5-9, and the Jackson Circuit Court did not err in its recognition that Lee’s grandparent visitation could continue after the biological relative adoption. Affirmed.

Joseph M. Mateyko v. State of Indiana - "Without an appellee’s brief from the State, Mateyko need only present a prima facie showing of error. Under this standard of review, we agree with Mateyko that the State failed to present sufficient evidence to show that he violated the above-mentioned condition of his probation. Although we obviously do not condone Mateyko’s vulgar language, he was essentially correct in his assertion that he was not prohibited from seeing his children. We further note that this incident occurred during Mateyko’s first therapy session. Under these facts and circumstances, we cannot say that Mateyko failed to “attend, actively participate in and successfully complete a court-approved sex offender treatment program.” Appellant’s App. p. 20. We therefore reverse the trial court’s order finding that Mateyko had violated this condition of his probation. Reversed. "

In R.W., a Child Alleged to be a Delinquent Child v. State of Indiana , an 11-page opinion, Judge Najam writes:

R.W. appeals from his adjudication as a delinquent child for committing Public Intoxication, a Class B misdemeanor when committed by an adult. He presents two issues for our review, but we address only the following dispositive issue: whether the trial court provided R.W. a meaningful opportunity to consult with his mother regarding the waiver of his right to counsel during his initial hearing. We reverse. * * *

There is no evidence in the record to demonstrate that R.W. was given any opportunity to consult with his mother. Accordingly, the State has not met its “heavy burden” to demonstrate that R.W. satisfactorily waived his right to counsel. Cherrone, 726 N.E.2d at 254. Therefore, R.W.'s subsequent confession to the allegations against him at the initial hearing were not given in accordance with IC 31-32- 5-1, and we must reverse his adjudication.

James J. Redd v. Penny E. Redd - "Because we conclude that the trial court erred when it found that J.R. was emancipated and has repudiated the parent-child relationship with Mother, we remand this case to the trial court to consider whether Mother should be required to contribute towards J.R.s post-secondary educational expenses. However, the trial court did not err when it ordered Father to pay thirty-two percent of K.R.'s high school tuition and pay $1000 of Mother's attorney fees. Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. "

NFP civil opinions today (2):

Michael T. Lewis v. Nicole (Lewis) Sparks (NFP) - "The trial court imputed income to Father based upon his credentials and past earnings without regard to current prevailing opportunities. As such, the trial court applied an incorrect legal standard to the properly found fact of unemployment. Because the trial court abused its discretion in imputing income to Father, we reverse the order on child support and remand to the trial court with instructions to recalculate Father’s gross income for child support purposes. Affirmed in part, reversed in part, and remanded. "

In Mike Halstead v. Gilbert Bridgewater d/b/a Gil's Machine Service (NFP), a 9-page decision with 3 opinions, Judge Mathias writes:

Mike Halstead (“Halstead”) filed a complaint in Marion Superior Court against Gilbert Bridgewater d/b/a Gil’s Machine Service (“Bridgewater”) alleging that Bridgewater breached his oral contract with Halstead. The trial court entered a judgment in favor of Halstead, but subsequently granted Bridgewater’s motion to correct error after concluding that the parties never had a meeting of the minds. Halstead appeals and argues that the trial court abused its discretion when it granted Bridgewater’s motion to correct error. We reverse and remand for proceedings consistent with this opinion. * * *

This testimony establishes that the parties entered into a contract for the restoration of the Chevelle. The parties agreed that Halstead would pay $12,000 to Bridgewater for labor and that Halstead would purchase and provide to Bridgewater the parts required for the restoration. Accordingly, we conclude that the trial court abused its discretion when it granted Bridgewater’s motion to correct error and determined there was no “meeting of the minds.” We therefore reverse the trial court’s judgment granting the motion to correct error and direct the trial court to reinstate its January 10, 2008 judgment.

Reversed and remanded for proceedings consistent with this opinion.

BROWN, J., concurs in result with opinion. [which begins] I concur in the result but write separately to state my belief that the correct resolution of this case by the trial court would have been to award Halstead the benefit of his bargain, which is a fully restored car for $18,000. As the dissent notes, the car, and all parts purchased by Halstead or the cost of the parts, should be returned to Halstead.

BAKER, C.J., dissents with opinion. [which begins] Although I am compelled to concur with the majority’s conclusion that there was, in fact, a meeting of the minds between Halstead and Bridgewater, I respectfully dissent from the disposition of the case. It is undisputed that Halstead paid Bridgewater $12,500 for labor and that Halstead spent an additional $1,166 on parts for the Chevelle. Tr. p. 24, 26-28. Therefore, the trial court’s original judgment—which is reinstated as a result of the reversal of its ruling on the motion to correct error—awarding Halstead the Chevelle and the full contract price of $18,000 would result in a windfall to Halstead.

NFP criminal opinions today (5):

Orlandis Brown v. State of Indiana (NFP)

Steve Magness v. State of Indiana (NFP)

Lynda Awald, Bail Agent v, State of Indiana (NFP)

Evelyn M. Waldridge v. State of Indiana (NFP)

Stephan Arndt v. State of Indiana (NFP)

Posted by Marcia Oddi on February 19, 2009 12:23 PM
Posted to Ind. App.Ct. Decisions