Wednesday, December 29, 2010

Pro se Litigant Child Custody Appeals in Indiana

In this article I am going to present to you my contention that pro se litigants should NOT proceed on appeal without assistance. In doing so I am examining and referencing four cases; The published opinion of Novatny v Novatny decided 31 August 2007; Cook v Cook decided 03 April 2007; Deardordff v Deardorff decided 31 August 2010, and; Stearns v Stearns a dissolution case decided 17 August 2010.

The first thing I want to let you know is that it is well settled that pro se litigants are held to the same standard as licensed lawyers. [See Payday Today, Inc. v. McCullough, 841 N.E.2d 638, 644 (Ind. Ct. App. 2006)]. That is to say that the court is under no obligation to give a break to a litigant based upon the status that he or she is not represented by an attorney.

Pro se litigants can be effective advocates for their cause. After all, who is more committed to the cause than the very person who will be affected by the outcome. However, most fail to adhere to or fully understand court procedures and suffer the consequences. I see this often in applying the Rules of Evidence and to a lesser degree the Rules of Trial Procedure. But, when it comes to appeals there is much to be desired from the collective efforts of pro se litigants.

I have endured significant failures in legal proceedings while represented by attorneys. My successes have been much greater during the 10 years or so that I have been a pro se litigator. Attorneys have begged me to settle rather than go to trial, motions to dismiss or for summary judgment have failed, judges have had to correct their orders and, most importantly, prosecutors have refused to face me in criminal trials and dismissed charges, even over my objection and demand to be recharged.

But, I study law full-time.

The importance of learning the applicable law, courts rules and how the reviewing courts have applied these cannot be overstated. When it comes to an appeal there is little room for error. One must know, almost instinctively, the deadlines for filings and how to write an appeal brief which includes stating the issue upon appeal, applying the standard of review, stating the facts and making cogent argument by citing to the record and authority supporting the proposition.

I want to dive right in by giving you an example of why it is important to know, understand and comply with the Rules of Appellate Procedure. For this I am using the unpublished case of Cook v Cook decided 03 April 2007.

Cook v Cook

Christy Cook (“Wife”) appealed the trial court’s judgment as to custody, support, and property issues in the marital dissolution proceeding she initiated against Matthew Cook (“Husband”). Husband filed a motion to dismiss Wife’s appeal pursuant to Indiana Appellate Rule 36(B), based on his contention that her brief did not substantially comply with the Indiana Rules of Appellate Procedure. Husband characterized Wife’s appeal as frivolous and in bad faith and requested attorneys’ fees pursuant to Appellate Rule 66(E). The Court granted Husband’s motion to dismiss and his request for attorneys’ fees; then remanded for a determination of those fees.

It doesn't get much simpler than that. Follow the rules or you lose your case AND have to pay the opposing party's attorney fees. So, here is what the Indiana Court of Appeals was presented with and why the Court chose to dismiss Christy Cook's appeal.

The most egregious of Wife’s violations of the appellate rules involved Appellate Rule 46(A), which states that “[t]he appellant’s brief shall contain [eleven applicable] sections under separate headings and in the following order[.]” (Emphases added.)

Wife’s brief did not have a separate statement of issues, statement of case, statement of facts, or summary of argument as required by Rule 46(A)(4), -(5), and -(6). Instead, Wife’s brief had only three separate “issue” paragraphs, with an “argument” after each one. The first issue itself has numerous subissues, several of which were not addressed in the subsequent argument. The first two arguments consisted largely of a confusing rehash of testimony favorable to Wife, contrary to Rule 46(A)(6).

Indiana Appellate Rule 46(A)(6)(b) provides that “The facts shall be stated in accordance with the standard of review appropriate to the judgment or order being appealed.” What this means is that an appellant must state the facts of the case related to the basis for the appeal. In a child custody modification this may be stating what factors under IC 31-17-2-8 the court should have or wrongly considered.

Indiana Appellate Rule 46(A)(6)(c) provides that “The statement shall be in narrative form and shall not be a witness by witness summary of the testimony.” This means that it should be a mere recitation of facts not inclusive of how they were derived or their basis.

Wife’s third argument was a one-sentence assertion that the trial court improperly calculated her child support obligation.

Wife’s brief did not have a summary of argument as required by Appellate Rule 46(A)(7). This is rather simple to do. An Appellant needs to explain in concise language the legal basis for which he or she feels entitled to relief.

Appellate Rule 46(A)(8)(a) states that the appellant’s argument “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning." It is simply not enough to say that the trial court improperly calculated a child support obligation. An Appellant must provide appropriate reasoning behind that statement such as the trial court failed to attribute to mother imputed income for the free housing provided to her by her parents in exchange for assistance with the family operated business.

The rule continues with, "Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.” This means that for my preceding example about free housing I would cite to a published opinion where the court had ruled that way in a previous case. I would then attach the documents the trial court relied upon such as mother's income and expense declarations.

The Court of Appeals concluded, "Wife’s arguments are devoid of cogent reasoning and nearly bereft of citations to (and explanations of) authorities and statutes."

Wife's shortcomings continued as noted by the Court. "Wife’s appellant’s appendix does not contain the chronological case summary (required by Appellate Rule 50(A)(2)(a)), the trial court’s judgment (required by Rule 50(A)(2)(b)), page numbers (required by Rule 51(C)), or a blue back cover (required by Rule 51(E)). The appendix contains only transcript excerpts and thus does not include copies of documents, such as the marital balance sheet or the GAL’s report, to which Wife refers in her argument on appeal."

The Husband also asserted that Wife had not complied with 'service' requirements. That is she did not provide to him copies of some of the filings that she made to the Court. This is required by Rule 24.

Finally, there was one thing that the Court doesn't take lightly which was Wife’s unsupported assertion that the trial court “grossly abused its discretion by completely ignoring not only the evidence presented on behalf of [Wife], but by ignoring the gross inconsistencies and inaccuracies of the testimony of the witnesses for [Husband], [Husband’s] own testimony, and by the Trial Court interjecting of [sic] its own bias to benefit [Husband].”

The Court of Appeals does have the plenary power to order a brief stricken “for the use of impertinent, intemperate, scandalous, or vituperative language on appeal impugning or disparaging this court, the trial court, or opposing counsel.” [See Pitman v. Pitman, 717 N.E.2d 627, 634 (Ind. Ct. App. 1999)].

Accusing a trial court of exhibiting bias is a serious matter and is not a tactic to be used simply because the court disbelieved certain witnesses and ruled against one’s client. In other words, accusations are not to be used in place of arguments on the merits. [See Catellier v. Depco, Inc., 696 N.E.2d 75, 80 (Ind. Ct. App. 1998)].

I certainly do not recommend that an appellant introduce himself or herself to the Court of Appeals panel by disparaging the Trial Court judge. In this case the judge was Fred Schurger of the Adams Circuit Court. I have never had the opportunity to sit in Schurger's court, although I intend to at some point, but I have had conversation with him and heard him speak about such issues. I simply don't believe that he holds a bias against Christy Cook, or mothers in general, nor do I believe that he ignores the testimony of witnesses.

The Court of Appeals had this to say in summary for its ruling. "Wife’s violations of the appellate rules are numerous and flagrant, and we hereby grant Husband’s motion to dismiss Wife’s appeal pursuant to Appellate Rule 36(B)."

They also granted Husband’s request for attorneys’ fees pursuant to Appellate Rule 66(E), which states, “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court shall remand the case for execution.” “In essence, damages should be assessed under this rule when an appeal is replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” [See Montgomery v. Trisler, 814 N.E.2d 682, 685 (Ind. Ct. App. 2004)]

The fact about this case that may shock you the most is that the appeal was not a pro se work but, instead, was the handiwork of attorney Trisha K. Walls of Fort Wayne, Indiana. You can understand why I hang onto this opinion. This also provides to me a great opportunity to reinforce the need for litigants to have me assist their attorney, especially on appeal.

This also encourages me to state my long held observation; The Court of Appeals has never granted the requested relief to both parties because at least one side is always wrong, even if both are represented by attorneys.

Deardorff v Deardorff

Next is the simple case of Deardorff which was recently decided.

Lori A. (Deardorff) Tilden appeals the denial of her motion to correct error in an order that reduced the child support obligation of her ex-husband, Kevin L. Deardorff. As the Court of Appeals was unable to address any of her allegations of error, the trial court was affirmed.

Lori's first argument heading was: “The trial court erred in the calculation by not including capital gains income.” She does not cite evidence in the record demonstrating there were such capital gains or explain what capital gains were erroneously excluded. Neither has she cited any case law to support an argument the trial court should have included the capital gains at issue in the computation of income for child support purposes."

The Court is therefore unable to address this allegation of error without developing Lori's arguments for her and this allegation of error is waived. [See Evansville Outdoor Advertising, Inc. v. Princeton (City) Plan Com’n, 849 N.E.2d 630, 636 (Ind. Ct. App. 2006), trans. denied.]

Lori's second allegation was: “The trial court erred in the retroactivity of the child support order.” She notes our Indiana Supreme Court recently affirmed that trial courts have discretion to determine when a modification becomes effective, quotes three sentences from that decision, and then claims: “In this case, equity would not be served if the Court makes any support modification retroactive.” Again, Lori failed to explained what the relevant facts are, where in the record the Court can find evidence to support those facts, how the trial court abused its discretion, why “equity would not be served,” and what relevance equity has to with the determination of whether the trial court abused its discretion. Thus, she has waived her allegation of error regarding the retroactivity of the child support order. [See, e.g., Evansville Outdoor Advertising, 849 N.E.2d at 636].

Lori's third issue statement is: “The trial court failed to rule on motion to correct errors 'Deemed Denied' – T.R. 53.3.” In support, she offers only a two-paragraph quote from a law review article regarding Trial Rule 53.3. She did not explain the application of that rule to whatever facts might be relevant for the Court of Appeals' consideration of the trial court's jurisdiction to enter its order when it did. Neither has Lori explained whether, or how, the relief she requests is impacted by the validity of the order denying her motion to correct error. Because Lori has not developed this argument, it is waived. [See, e.g., Evansville Outdoor Advertising, 849 N.E.2d at 636.]

Essentially she is just making bald assertions which she then expects the Court of Appeals to find justification for in the record. The Court of Appeals cannot do this. That would place them in the position of developing argument for her and being her advocate. [See, e.g., Evansville Outdoor Advertising, 849 N.E.2d at 636.]

The purpose of appeal is to demonstrate how the trial court either abused its discretion or misapplied the law. It is imperative, and a rule, that an appellant must make an argument supported by cogent reasoning. Without this the Court is left with no alternative but to dismiss.

Stearns v Stearns

Here is another recently decided case which is based upon the actions of a pro se litigant at the trial court level.

Mark Stearns (“Husband”) appeals the dissolution court’s Order Granting Motion to Strike and Order Granting Petition for Contempt Citation in post-dissolution proceedings with Amy Taylor-Stearns (“Wife). Husband presents four issues for review, which we consolidate and restate as:
1. Whether the dissolution court abused its discretion when it granted Wife’s motion to strike the motions Husband had filed after the court-ordered deadline.
2. Whether the dissolution court abused its discretion when it found Husband in contempt and sanctioned him for willful breach of the Settlement Agreement.
The Court of Appeals affirmed the trial court on all issues.

At the January 21 pretrial conference, the court ordered Husband to file within thirty days any motions to be consolidated for hearing on June 16. Husband filed numerous motions on May 4, seventy (70) days after the deadline. At the June 16 hearing, Husband explained his late filing as follows:
"When I came in here for pretrial, I fired my lawyer. And I had no idea what I was doing, and I asked the Court if we could put this pretrial off until I hire[d] new counsel. And I was pushed by counsel to go ahead with the pretrial, not knowing what I was doing. I had no idea at the time what I was doing. And, you know, I don’t understand why I was ever backed into a corner and had my hands tied so I couldn’t motion [sic] the Court, when the other side could motion [sic] the Court, and I couldn’t motion [sic] the Court because of those motions [sic]. It doesn’t make any sense to me. It seems unfair."

Here's another opportunity for me to interject an observation; "Fair" is a place where you find stinky animals, fattening foods and amusement rides, not something you find in a courtroom.

What litigants should do is understand the laws and court rules and the purpose for those.

Following a response by Wife’s counsel, the court stated:
"Deadlines must be adhered to. And sir, I acknowledge the fact that you are not a lawyer, but this was not a type of a deadline that you would not be able to understand without a Black’s Law Dictionary or something like that. Respondent [Husband] has thirty days to file any motions to be consolidated for hearing set forth above. So I am going to strike the pleadings that were filed[.]

Seventy days is not a simple oversight of a deadline. The volume of the pleadings filed demonstrate that they were very unlikely all completed on one day. At least some could have been filed earlier.

On appeal, Husband again argues that he missed the deadline because he was “unable to find competent counsel” within the thirty-day time period and therefore had to prepare the motions himself. But other than his statement that he was unable to find an attorney, Husband has not shown what efforts he made to find competent counsel. And Husband missed the deadline by a significant amount of time and had not applied to the court for an extension of time. Further, although Husband was attempting to pursue the matter pro se, again, pro se litigants are held to the standards of licensed attorneys. [See Goosens v. Goosens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005)]. That standard includes abiding by court-ordered deadlines. Based upon these facts the dissolution court did not abused its discretion when it granted Wife’s motion to strike Husband’s untimely filed motions.

Husband made some other assertions about the procedures employed by the trial court. But just like the others he failed to back his assertions with sufficient argument.

Indiana Appellate Rule 46(A)(8)(a) requires litigants to support their arguments with cogent reasoning and citations to authorities, statutes, and the Appendix or parts of the Record on Appeal relied on. Because Husband has not provided citations or cogent analysis, the argument is waived.

Husband's second issue was the contempt citation. Husband argued that the sanction for indirect contempt relating to certain financial obligations and limitations upon marital property was punitive in nature. However that argument failed as the court sought to compel performance and the Indiana legislature has codified a difference in direct and indirect contempt. Thus his argument fails.

He delved further into the contempt issue but again failed to support such with cogent reasoning and citation to authority. [see Indiana Appellate Rule 46(A)(8)(a)].

Again, an appeal that doesn't substantially comply with the rules because of a lack of providing proper form of argument.

Novatny v Novatny

Mary Ann Novatny (“Mother”) appealed the trial court’s order modifying the custody terms of her dissolution decree (“Modification Order”). Mother raised two issues for review, and Christopher Novatny (“Father”) cross-appealed and raised two other issues. The Court reordered and restated the issues, as follows:
1. Whether Mother’s appeal should be dismissed because she did not comply with the Appellate Rules.
2. Whether the court erred when it determined that it had jurisdiction under the Uniform Child Custody Jurisdiction Act (“UCCJA”).
3. Whether Mother should be ordered to pay appellate attorney fees due to her noncompliance with the Appellate Rules.

The Court first noted that "Mother did not substantially comply with the appellate rules or our order that she do so. And she offers no excuse for her noncompliance." However, dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules but the Court prefers to resolve cases on the merits. [See Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004)].

The needs of justice dictate that this case, which involves the modification of physical custody, be decided on its merits. Mother raises a significant issue on appeal that she properly preserved by a timely objection: the court had no jurisdiction under the UCCJA because she, the children, and Father had all moved from Indiana.

The court that first enters a custody decree on a matter gains exclusive jurisdiction, but that jurisdiction continues only until all parties and the children that were the subject of the decree have left the state. [See In re Custody of A.N.W., 798 N.E.2d 556, 561 (Ind. Ct. App. 2003), trans. denied].

Indiana is not the children’s home state as they moved to Virginia in February 2004 and continued to live there until the time of the hearing. Indiana Code § 31-17-3-2(5) defines “home state” as “the state in which the child, immediately proceeding the time involved, lived with his parents, a parent, or a person acting as a parent, for at least six (6) consecutive months. . . Periods of temporary absence of any of the named persons are counted as part of the six (6) months or other period.” I.C. § 31-17-3-2(5). Under the UCCJA as adopted in Indiana, Virginia would have qualified as the child’s home state.

“[B]y definition, if the child has a ‘home state’ other than Indiana, then jurisdiction may not be assumed in Indiana unless the home state has declined its jurisdiction.” [See Hughes v. Hughes, 665 N.E.2d 929, 932 (Ind. Ct. App. 1996)]. [See also Pryor v Pryor, 709 N.E.2d 374, 377 (Ind. Ct. App. 1999)]. Even though Virginia had not assumed jurisdiction of the case, there is no evidence that Virginia declined jurisdiction. Apparently, Virginia had never been requested to assume jurisdiction prior to the filing of Father’s petition. On August 22, 2006 Father filed his Petition to Modify Custody and Child Support. Father testified that he lived in Chicago and that he had lived in Illinois since November 2000.

Thus, neither the child nor parents lived in Indiana when Father's petition was filed. Therefore Mother was correct that the court abused its discretion when it determined that it had jurisdiction over the Petition to Modify.

Finally the Court had to address the issue of appellate attorney fees incurred by Father. Father contended that he was entitled to appellate attorney’s fees because of Mother’s noncompliance with the Appellate Rules. However, the Court tempers its determination to allow appellate attorney’s fees “so as not to discourage innovation or periodic reevaluation of controlling precedent.” [See Potter v. Houston, 847 N.E.2d 241, 249 (Ind. Ct. App. 2006) (citing Orr v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987))].

An award of attorney’s fees under Appellate Rule 66 is appropriate “when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” [See Potter, 847 N.E.2d at 249 (quoting Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001))].

In this instance Mother preserved and prevailed on the one issue which controls the outcome of her appeal. Thus, Mother’s conduct in this appeal does not warrant the award of appellate attorney’s fees, Father’s request for attorney fees was denied.

Although Mother made some procedural flaws in her appeal she was fortunate enough to have a cause that was worthy of being decided on its merits and, ultimately, she prevailed. This is an unusual achievement for a pro se litigant. As I have demonstrated even a trained attorney can fail miserably at writing an appeal and prosecuting it.


I hope I have been able to demonstrate here the need for litigants to have assistance not only in the appeal process but at the trial level also. For with proper assistance at the trial level often times a costly appeal would not be necessary.

When it comes to the specialized practice of child custody litigation the stakes are too great to not have your case competently argued. Many litigants have wasted thousands of dollars on appeals or hearings at the trial level because of incompetent attorneys. More important though is the loss of a relationship with their child and the possible danger that the child may be exposed to in the current custody situation.

I liken this to building a house. If the foundation is laid upon a sink-hole or is not to code for the size of the house then does anything after that even matter?

Some attorneys are a sink-hole sucking money from clients who don't recognize the tactics and lack of legal acumen. Some attorneys and many litigants don't now the proper code or rules in which to conduct child custody proceedings and resulting appeals. At a minimum I suggest that you use the "Prospective Attorney Questionnaire" on this page when interviewing an attorney to represent you in a child custody proceeding.

I am thankful for the opportunity to serve litigants and attorneys who have the wisdom to recognize the value of consulting with a specialist. I feel sorrow for the innocent children who are victims of parents who refuse to have their actions or that of their attorney reviewed. If you are of the former please feel free to contact me for assistance with your case.

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