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Wednesday, July 29, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Lori (Faust) Montgomery v. Dennis Faust, a 9-page opinion, Judge Riley writes:

Wife first argues that the trial court failed again on remand to properly include all marital assets, namely, the Dora Road property and the Chevrolet truck, in the marital pot. In our original opinion, we instructed the trial court “to put all of the marital property, including property owned by Husband and Wife before the marriage, into the marital pot before determining the appropriate division.” In its order on remand, the trial court stated that it included all of the marital assets “in the marital pot and considered same in its distribution.” Then, however, the trial court, citing the short duration of the marriage [ILB - 3.5 yrs] , stated that it was returning to each party all property that each owned prior to the marriage “and thereafter equitably dividing the remaining Assets and Debts on a substantially equal basis.” Wife contends that simply setting off such property in such a perfunctory manner “constitutes the type of systematic exclusion of assets” that we held to be an abuse of discretion in our original opinion. We agree. Purporting to put all marital assets into the marital pot but then removing certain assets before dividing the rest is equivalent to excluding those assets from the pot in the first place. * * *

Wife also argues that the trial court, having failed to include all marital assets in the marital pot, further abused its discretion by failing to adequately consider all of the factors listed in Indiana Code section 31-15-7-5. Again, we conclude that Wife has established prima facie error in this regard. * * *

The above discussion reveals prima facie error in the trial court’s division of the marital property. However, in the interest of judicial economy, we decline to order further proceedings before the trial court. Instead, we remand with instructions to the trial court to eliminate the equalization payment from Wife to Husband from its dissolution decree, which we conclude will result in a just and reasonable division of the marital property. * * *

Based on the foregoing, we conclude that Wife has again established prima facie error in the trial court’s division of the marital property. We remand to the trial court with instructions to eliminate the equalization payment from Wife to Husband. However, we affirm the trial court’s denial of Wife’s petition for an award of attorney fees arising from her first appeal in this case.

In Robert A. Elrod v. Larry Brooks , a 7-page opinion, Judge Riley writes:
Although we acknowledge that Small Claims Rule 8(A) indicates that the court is not bound by the Rules of Trial Procedure, our supreme court nevertheless stated in Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995), that “the Rules of Trial Procedure apply in small claims court unless the particular rule in question is inconsistent with something in the small claims rules.” Having reviewed the Small Claims Rules, we did not discover any specific rules that would preclude the application of Indiana Trial Rules 42(A) and 43(D).

In the instant case, the small claims court clearly ordered a joint hearing of both Elrod’s complaint and Brooks’ counterclaim. While Elrod carried the burden of presenting evidence on his complaint, Brooks carried a similar burden with respect to his counterclaim. Thus, after producing the evidence which sustains the claim—be it the original complaint or a counterclaim—the adverse party may produce evidence contesting this claim.

Recognizing the great amount of discretion a small claims court has in the orderly conduct of the proceedings before it, we are nevertheless troubled by the court’s outright refusal to give Elrod an opportunity to introduce evidence in an attempt to refute Brooks’ counterclaim. Even if it was the small claims court’s intention that Elrod should have presented all his evidence which supported his claim and contested Brooks’ counterclaim at the same time, the court never shared this intent with the parties. Regardless, it would still be dubious for Elrod to have to defend against a claim before hearing the evidence in support of it. Although informality is the key in small claims proceedings, it should not come at the cost of fundamental rights of the parties. Therefore, we conclude that the small claims court abused its discretion by denying Elrod’s right to present evidence contesting Brooks’ counterclaim. * * *

Reversed and remanded for a new trial.

NFP civil opinions today (3):

In the Matter of the Unsupervised Estate of Hyacinth Chin Sang Kidman, Gloria Stedman v. Blue River Foundation, American Red Cross, and Salvation Army (NFP) - "I agree with the majority’s conclusion that the Will incorporates the Trust. I respectfully disagree, however, with its conclusion that Article III of the Will irreconcilably conflicts with Section 6 of the Trust regarding the payment of death taxes. Therefore, I dissent."

In Darrolyn A. Ross, et al v. Sheila Rudolph, Luvenia Kilpatrick, et al (NFP), a 4-page opinion, Judge Bradford writes:

The sole question before us is whether Judge Zore had the authority to set aside his earlier order of summary judgment in favor of Appellees on the same day that he recused himself. Appellants contend that Judge Zore’s order is invalid, as it was issued on the same day as his recusal. Appellees contend that Indiana law does not prevent a judge from issuing substantive orders on a case, even after he had decided that he must recuse himself, unless actual prejudice or bias has been shown.

The question here is not whether the trial court’s withdrawal of grant of summary judgment in favor of Appellees amounts to an abuse of discretion, but, rather, whether Judge Zore had the authority to rule on the matter at all, which is a question of law. Ehrlich v. Thayer, 686 N.E.2d 916, 917 (Ind. Ct. App. 1997). A judge may not render a substantive ruling in a case where a recusal was issued simultaneously. Thacker v. State, 563 N.E.2d 1307, 1309 (Ind. Ct. App. 1990). Where a judge has recused himself, he can no longer issue any substantive rulings.

Here, even though the orders in question were issued on the same day, the record does not reflect whether the recusal decision preceded the order to set aside the summary judgment or followed it by, perhaps, several hours. We cannot assume that orders issued the same day are necessarily issued at the same time. Because there is nothing in the record indicating that Judge Zore issued the order to set aside the summary judgment after deciding to recuse himself, we must presume that he did not. “It is a cardinal rule of appellate review that the appellant bears the burden of showing reversible error by the record, as all presumptions are in favor of the trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App. 2006). Under the circumstances, we must affirm the judgment of the trial court.

Mark Franciose, Ray Ramirez, III v. Aaron A. Jones (NFP)

NFP criminal opinions today (7):

Daren E. Ridley v. State of Indiana (NFP)

Myran D. McKnight, Sr. v. State of Indiana (NFP)

Gloria J. Cullom v. State of Indiana (NFP)

Jose S. Contreras v. State of Indiana (NFP)

Alfredo Torres v. State of Indiana (NFP)

Phillip T. Billingsley v. State of Indiana (NFP)

Garnet R. Cox v. State of Indiana (NFP)

Posted by Marcia Oddi on July 29, 2009 11:31 AM
Posted to Ind. App.Ct. Decisions