The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 13 NFP)

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Thursday, September 24, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 13 NFP)

For publication opinions today (4):

Indiana High School Athletic Association v. Jasmine S. Watson and South Bend Community School Corporation - see ILB summary here.

In Anita (Handy) Oberlander v. Kevin Handy, 14-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-petitioner Anita (Handy) Oberlander appeals the trial court's order denying her request for relief from judgment, arguing that the trial court erred by refusing to modify its decision to award custody of Anita's child with appellee-petitioner Kevin Handy to Kevin. Finding that Anita is not entitled to relief pursuant to Trial Rules 59 or 60, but that the trial court should consider whether a modification of custody is warranted, we affirm and remand for further proceedings. * * *

Had the trial court felt free to weigh DCS's uncontroverted recommendation that Anita be given custody of A.H. and Anita's full version of events—much of which is undisputed and much of which was not even allowed into the hearing—against Kevin's evidence from the uncontested final hearing, it is entirely possible that a different result would have been reached. Therefore, we remand this matter to the trial court so that it can revisit this case and weigh all of the evidence to determine whether a modification of the current custody arrangement is warranted. We urge the trial court to look to the factors set forth in Indiana Code section 31-17-2-8 and apply those factors explicitly in its final custody order.

The judgment of the trial court is affirmed and remanded for further proceedings consistent with this opinion.

FRIEDLANDER, J., concurs.
RILEY, J., dissents with opinion. [that begins, at p. 12] I respectfully dissent from the majority's decision to affirm the trial court's Order. In its opinion the majority attempts to please everyone: on the one hand, it affirms the trial court's Order, while at the same time the majority directs the trial court to reconsider its custody determination in line with Anita's request. While I agree that the custody determination, as it is ordered by the trial court, has to revisited, I would reverse the trial court's decision on Anita's motion to correct error and remand for a new trial, thereby necessitating custody of A.H. to remain with Anita until a hearing could be held.

In Paternity of P.S.; B.S. v. L.S. and G.D. , a 10-page, 2-1 opinion, CJ Baker writes:

Appellant-petitioner P.S.S., by next friend, Barrington A. Smith, appeals the juvenile court’s order denying her petition to establish paternity and dismissing the cause of action. P.S.S. contends that the juvenile court erred by concluding that it did not have jurisdiction over her petition and that she is not entitled to raise the paternity issue when it was already decided during her parents’ dissolution proceeding. Finding no error, we affirm. * * *

FRIEDLANDER, J., concurs.
RILEY, J., dissents with opinion. [that begins, at p. 8] I respectfully dissent from the majority’s decision affirming the juvenile court’s order which dismisses P.S.S.’s petition to establish paternity. While I agree with the majority’s stance on the jurisdictional issue, I part ways with their treatment of the merits of P.S.S.’s action.

In State of Indiana v. William J. Parham , a 5-page opinion, Judge Kirsch writes:

The State appeals the trial court's order granting William J. Parham's petition for post-conviction relief and raises one issue, which we restate as whether the trial court properly granted Parham's petition for post-conviction relief. We reverse. * * *

Here, Parham received a significant benefit from pleading guilty. Pursuant to the plea agreement, the State agreed to reduce the Class B felony robbery charge brought under Cause Number 216 to a Class C felony. Additionally, the thirty-five year sentence provided for in the plea agreement was substantially less than the possible maximum sentence Parham could have received under Cause Numbers 128 and 216, which the post-conviction court found was fifty-eight years. In striking a favorable bargain with the State, Parham gave up the right to challenge the imposition of unauthorized consecutive sentences. See Stites v. State, 829 N.E.2d 527, 529 (Ind. 2005); Lee, 816 N.E.2d at 40; Gonzales v. State, 831 N.E.2d 845, 847 (Ind. Ct. App. 2005), trans. denied. Therefore, we conclude that the trial court erred in granting Parham's petition for post-conviction relief, Reversed.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of A.F.; B.F. v. IDCS (NFP)

Marcia (Geisler) Ferrante v. John Geisler (NFP)

NFP criminal opinions today (11):

Lesa G. Caenepeel v. State of Indiana (NFP)

Pagerick Moody v. State of Indiana (NFP)

Amanda M. Dulworth v. State of Indiana (NFP)

Boyce Collier v. State of Indiana (NFP)

William Henry Rogers v. State of Indiana (NFP)

Keith Orman Hawkins v. State of Indiana (NFP)

Linda Roth v. State of Indiana (NFP)

Steven Hall v. State of Indiana (NFP)