Margaret Young, Guardian of Michael Sweeney v. Estate of Robin Sweeney (5/28/04 IndCtApp) [Civil Procedure]
May, Judge
[W]e find sua sponte we have no jurisdiction to hear this appeal and therefore dismiss it. * * *Bank of New York v. Stephen Nally, et al. (5/28/04 IndCtApp) [Banking; Attorney Fees]Because Young’s interlocutory appeal is not properly here under App. R. 14, we do not have jurisdiction over this appeal. App. R. 5(B). Accordingly, we must dismiss.Dismissed.
NAJAM, J., and BAKER, J., concur.
The circumstances of this case present an issue of first impression in Indiana: Is a mortgagee entitled to recover attorneys fees incurred when litigating the issue of mortgage priority? * * *Thomas Batterman v. Laurel (Batterman) Bender (5/28/04 IndCtApp) [Family Law]While we note that other reported cases have permitted mortgagees to collect attorney fees for defending claims made against them by the mortgagors, the rationale set forth in those cases differs significantly from the circumstances here, because in those matters, the fees were incurred as a result of direct litigation with the mortgagors and not with third parties. Put another way, the mortgagors chose to defend themselves and participate in the litigation process. Conversely, the Nallys did not do so here. * * *
For the above reasons, we conclude that the trial court erred when it awarded the Owenses the amount of fees they incurred in litigating the mortgage priority issue with the Bank. The Nallys never participated in the matter, and the language contained in the mortgage documents did not expressly authorize entitlement to such attorney fees. Thus, the trial court abused its discretion in awarding the amount of fees that the Owenses incurred in litigating the issue of priority against the Bank. As a result, we affirm in part, reverse in part, and remand this case to the trial court for a proper determination of attorney fees, along with costs and interest to which the Owenses are entitled. Affirmed in part, reversed in part and remanded.
FRIEDLANDER, J., and BAILEY, J., concur.
In this interlocutory appeal of right pursuant to Indiana Appellate Rule 14(A)(1), appellant-petitioner Thomas Batterman appeals the trial court’s order concerning a temporary child support order in favor of appellee-respondent Laurel Batterman. Specifically, Thomas raises three issues: whether Indiana had jurisdiction where the foreign child support order had not been properly registered, whether Indiana substantive law should apply, and whether Indiana had the authority to modify the child support order without an evidentiary hearing. Finding that Thomas invited any error and that Indiana law applies in this matter, we affirm. * * *Jennifer Megyese v. Bobbie & Anthony Woods (5/28/04 IndCtApp) [Family Law]Conclusion. Thomas has waived his arguments as to whether the Wisconsin order was properly registered and whether the trial court had sufficient evidence to enter the temporary child support order and apply it retroactively inasmuch as he invited any error that may have occurred. Furthermore, the trial court properly utilized Indiana law throughout these proceedings. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
This is a grandparents' visitation rights case. Mother the trial court’s grant of visitation to paternal Grandparents. The Court here affirms.
The trial court’s conclusions of law were as follows:Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation (5/28/04 IndCtApp) [Constitutional Law][Mother’s] decision to prevent any visitation by [Grandparents] must, of course, be given “special weight” pursuant to Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.E.2d 49, and the Indiana cases that have applied and followed it. Accordingly, a presumption exists that her decision is in [the Children’s] best interests. Nonetheless, “ . . . this presumption is rebuttable and the petitioning grandparent has the burden of rebutting this presumption.” Crafton v. Gibson, [752 N.E.2d 78, 98 (Ind. Ct. App. 2001)].
Accordingly, it is the trial court’s prerogative to listen to the evidence and determine, in light of that evidence, whether a parent’s alleged justification for denying or restricting visitation with grandparents holds water. Spaulding v. Williams, [793 N.E.2d 252, 260 (Ind. Ct. App. 2003)].
The greater weight of the evidence: rebuts [Mother’s] decision to terminate contact with [Grandparents], the reasons for which appear unfounded; and
supports the proposition that visitation with their paternal grandparents is in [the Children’s] best interests.The sole issue is whether the trial court’s order granting Grandparents visitation with the Children is clearly erroneous. Ind. Code § 31-17-5-1 (1998) governs grandparent visitation rights, and provides that: (a) A child’s grandparent may seek visitation rights if: (1) the child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock. (b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child’s father has not established paternity in relation to the child.
Ind. Code § 31-17-5-2 (1998) provides that: (a) The court may grant visitation rights if the court determines that visitation rights are in the best interests of the child. (b) In determining the best interests of the child under this section, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. * * *
In summary, the trial court did not fail to accord a presumption in favor of Mother’s decision to deny visitation. Rather, it weighed the evidence and concluded that Mother’s reasons for denying visitation were unfounded. Moreover, the trial court did not fail to make specific findings of fact and conclusions thereon, explaining why Grandparents’ visitation is in the Children’s best interests. Therefore, the trial court’s order granting Grandparents visitation with the Children is not clearly erroneous. For the forgoing reasons, we affirm the judgment of the trial court awarding Grandparents visitation rights with the Children. Affirmed.
DARDEN, J. and ROBB, J. concur
Here the Parents claim that the EVSC’s policy of charging students a certain fee violates Article 8, Section 1 of the Indiana Constitution. The trial court granted summary judgment in favor of the school corporation. The Court of Appeals reverses and remands.
Beginning with the 2002-2003 school year, the EVSC imposed a twenty-dollar student activity fee upon students in kindergarten through twelfth grade. The EVSC School Board imposed this fee at the recommendation of the teacher’s union and the EVSC, which worked together to find a solution to the EVSC’s budget deficit without raising taxes. In 2002, the EVSC had incurred a budget deficit of $2,300,000, and for 2003, the projected budget deficit was $5,500,000. Approximately $1,500,000 of the 2002 deficit was the result of the State’s failure to provide funds which had been anticipated, and the remainder of the deficit was the result of increased costs in the EVSC’s standard operations. The EVSC is required by State law to have a balanced budget. The fee, along with State funds and local property tax revenues are deposited into the EVSC’s general fund, which is used to fund school expenses. The EVSC does not maintain a specific object number or function number to track what the money collected as a result of the fee is used to pay for.[Note] The Indianapolis Star already has posted a brief story on today's ruling, headlined "State court strikes down school fees: ICLU led challenge of mandatory charges some districts impose on parents of students."Nevertheless, the EVSC claims that the fee is used to pay for the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (3) media specialists, formerly known as librarians; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular activities, which includes athletic programs, the drama program, the music program, academic programs, and speech and debate programs.
The fee was assessed against all students, regardless of whether they were eligible to participate in the reduced or free lunch and textbook programs. If the parents of a student fail to pay the fee, the parents are notified that their bill will be referred to a law firm for collection and that attorneys fees of up to $100 will be charged regardless of whether a collection suit is actually brought against them. After the filing of the current action, and by agreement of the parties, the EVSC has decided not to initiate any collection proceedings until a final judgment has been rendered in the present case. * * *
In their appeal, the Parents challenge the trial court’s grant of summary judgment in favor of the EVSC upon the Parents’ claim that the EVSC’s imposition of the fee violates Article 8, Section 1 of the Indiana Constitution, which reads:
“Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools,wherein tuition shall be without charge, and equally open to all.”According to the Parents, the fee amounts to a charge for tuition, which is violative of the constitutional provision in question. Our task is to determine what is meant by the phrase “wherein tuition shall be without charge.” * * *[T]hat the EVSC claims that the money generated by the fee is used only towards the cost of personnel or services that are in addition to those required by the Legislature or the Board of Education is not dispositive of the issue, because under our interpretation of Article 8, Section 1, the EVSC might very well be prohibited from charging students for costs above and beyond personnel or services that are required by the State. Those personnel and services required by the State would indeed be within the ambit of those necessary expenses for which the EVSC may not constitutionally charge students, but what is necessary under our analysis to educate students might well go beyond what is required by the State.
More importantly, however, Mr. Yeager’s earlier testimony indicated that it was impossible to tell whether the money generated by the fee went to fund a specific activity. The money collected from the fee was not tracked inside the EVSC’s budget. By the practice of commingling and not keeping track of the money generated by the fee, such funds lost their specific identity. * * * Thus, the Parents have established that the money generated by the fee is used in some manner to pay for what amounts to tuition. This amounts to a charge for tuition in violation of Article 8, Section 1. The trial court erred in concluding otherwise, and we therefore reverse the judgment of the trial court and remand with instructions to enter summary judgment in favor of the Parents. * * *
The judgment of the trial court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
ROBB, J., concurs.
BAILEY, J., dissents with opinion:I respectfully dissent from the majority’s determination that the fee policy at issue violates the Indiana Constitution. In particular, I disagree with the majority’s conclusion that the word “tuition,” as used in Article VIII, Section 1 of the Indiana Constitution, includes “the services of a teacher or instruction,” as well as “those functions and services which are by their very nature essential to teaching or ‘tuition.’” The issue before us is whether the imposition of a student activity fee—which is used to fund the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (3) media specialists; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular activities—violates the Indiana Constitution’s mandate that the General Assembly provide a “uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.” See Ind. Const. art. VIII, § 1. Resolution of this issue requires us to interpret the constitutional meaning of the term “tuition.” * * *
[Update 5/29/04] Here is the expanded, and front-page, Star coverage. Some quotes from this excellent story:
Requiring parents of public school students to pay mandatory fees to cover the expense of counselors, librarians, nurses and after-school programs is unconstitutional, an Indiana court ruled Friday. The Court of Appeals panel also strongly hinted that Indiana's textbook rental fees, which can go as high as $400 per child, rest on shaky legal ground.Here is the story this morning from the Evansville Courier&Press. Some quotes:The 2-1 ruling will be appealed to the Indiana Supreme Court, which has never addressed the issue of whether public schools can charge fees. If upheld, the ruling would deliver a serious budget blow to cash-strapped public schools that rely on activity, health, lab and textbook fees to supplement state and local tax money. Most of Indiana's 294 school districts charge fees of some kind.
"The message here is directed at the General Assembly: Either start funding schools adequately or change the Constitution," said Kevin McDowell, chief counsel for the Indiana Department of Education. * * *
But Patrick A. Shoulders, an attorney representing the Evansville school district, said the ruling left him dumbfounded. He said the district will appeal. "The majority in this case has some litmus test -- only known to them -- as to what's necessary to educate students," Shoulders said. "This is a very active court, and this is a very activist decision. The ramifications are far-reaching."
The ruling echoed the reasoning of Indiana Attorney General Steve Carter, who in 2001 advised that charging a "health service fee" to pay the salaries of school nurses was unconstitutional. The Department of Education agrees with Carter's advisory opinion and discourages districts from using fees to cover educational expenses.
But the Indiana School Boards Association has argued that such fees are not unlike those charged for textbooks. In 1974, the Court of Appeals narrowly defined free tuition in a South Bend lawsuit to permit schools to charge textbook rental fees. Parents of low-income students do not pay book fees.
But this argument may no longer hold. In a footnote to the Evansville case, Sullivan called the court's legal reasoning 30 years ago in the textbook case "dubious at best."
INDIANAPOLIS - The Indiana Court of Appeals ruled Friday that a $20 activity fee imposed by the Evansville-Vanderburgh School Corp. violates the Indiana Constitution. In a 2-1 decision, the court found that the fee is mixed with the school's other money and therefore equals tuition payments used to fund instruction. The EVSC had argued the fee isn't tuition because the money only pays for extras such as librarians, nurses and counselors, rather than teachers.Posted by Marcia Oddi at May 28, 2004 02:16 PMIndiana's constitution calls for "a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all."
Previously, the only court case that ruled on what makes up tuition was a 1974 decision in which the Indiana Supreme Court found that charging students for textbooks does not amount to tuition and is allowed. But the appeals court found the fee crossed the line into tuition.
"Although the fee being charged by the EVSC is currently 'only' $20, nothing in the logic of the EVSC's argument ... would prohibit public schools from charging a student a $200 fee, or for that matter even a $2,000 fee," Judge Patrick D. Sullivan wrote in the majority opinion.
"This logic would permit our system of public schools to be priced out of reach in order to avoid raising local taxes," he added. "It would be a cold comfort indeed to inform a Hoosier family of limited means that they could send their children to public schools without being charged for teachers' salaries, but to say that they would be charged for school buildings, heating, electricity, textbooks, etc."
And the majority opinion then took issue with the 1974 decision. "We have our doubts with respect to the holding of (the 1974 case)," Sullivan wrote. "We are not beholden to blindly follow what we consider to be an erroneous holding."
Judge L. Mark Bailey disagreed with the majority's conclusion, arguing that the framers of the state constitution used the word "tuition," which they are bound to interpret only using its strictest meaning - the cost of teaching.