Friday, June 10, 2011

Justice Steve David can't follow simple Indiana law

If you pay attention to political or legal news then you should be familiar with the decision by Justice Steve David striking down an Indiana law that allows for citizens to use force to resist an unlawful entry into their domicile. The decision by the Indiana Supreme Court in Barnes v State of Indiana was handed down on 12 May 2011.

After getting additional information about the case and speaking with some civil rights attorney's I wrote briefly about that case and Justice David in “I tried to warn”. In that posting I specifically stated that I have had significant experience in the Boone Circuit Court and with Justice David in particular while he sat in that court.

Early on I was dismayed to hear that people, especially legal analysts, were stunned by the decision in Barnes and David's judicial activism. To me though it was business as usual for Steve David. As a bully from the bench he often intimidated litigants and went against long established legal principles. Lawyers refused to make a challenge knowing that their future clients would suffer equally by David's arbitrary and unlawful actions.

I took a stand, however, and Judge David took the path of avoidance. Never did he face my claim that I would reveal corruption by him and the Boone County Prosecutor Todd Meyer.

Last week while I was catching up on my reading of the higher court opinions in child custody cases I came across an attorney fee issue in a divorce. There were no children involved but it still caught my attention because Justice David had heard the case. So I read on.

Charles R. Bilyeu appealed the trial court’s order that he pay the attorney’s fees of Frani Bilyeu upon the dissolution of their marriage. Charles raised a single issue for review, namely, whether the trial court erred when it ordered him to pay Frani’s attorney’s fees. The panel reversed and remanded with instructions.

On April 8, 2005, Charles and Frani executed a premarital agreement that provided, among other things, that neither shall “demand, claim, take or receive from the other party attorney’s fees or other litigation expenses to which he or she might otherwise be entitled by reason of any rights arising out of the marriage and the relationship of the parties.” The next day, they were married. Charles filed a petition for dissolution of the marriage on July 28, 2008.

On June 16, 2009, Charles filed a motion to determine the validity and enforceability of the parties’ premarital agreement. The court held an evidentiary hearing on that motion on August 19. On September 21, 2009, Judge David entered an order on Charle’s motion, expressly concluding that the premarital agreement “is valid and enforceable.” Essentially Judge David determined and entered an order that recognized that the parties' had voluntarily entered into the pre-marital agreement and that it was an enforceable contract pursuant to Indiana Law.

On March 11, 2010, the trial court entered its dissolution decree, with findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. In the decree the court again acknowledged that the original premarital agreement was “valid and enforceable.” But the court also concluded that Charles “has far superior earnings and earnings potential” over Frani and shall pay a portion of Frani's “attorney fees in the amount of $5,500 . . . .”

Charles filed a motion to correct error, which the trial court denied. A motion to correct error is basically an appeal to the judge. A party details the basis for his or her belief as to why the judge made an error, what the underlying facts and law are and why the judge's decision was an error based upon the facts and the law.

In this instance Charles argued that he and Frani had entered into a contract concerning attorney fees, among other things, the day before they wed. Judge David had recognized that their agreement was lawful and binding and he was therefore barred from making any decision contrary to that agreement. Contrary to their agreement though Judge David decided that Charles would have to pay $5,500 of Frani's attorney fees to Thomas A Whitsitt.

This was contrary to established case law and was fundamental error. Fundamental errors are those which are clear on their face and need no interpretation. It would be the equivalent of saying that even though you had a green light and the intersection was clear when you entered it the guy who had a red light and t-boned your car was not at fault because you didn't have the right-of-way. Judge David should have corrected the final decree of dissolution of marriage in this case and eliminated the portion of the order where Charles was to pay $5,500 of Frani's attorney fees since Charles and Frani neither wanted the other to be responsible for the attorney fees of the other. Judge David didn't admit his error, something he never does, so Charles had to appeal.

The primary and overriding purpose of contract law is to ascertain and give effect to the intentions of the parties. If the intention of the parties can be gleaned from their written expression, that intention must be effectuated by the court. In determining the parties’ intent, all of the contractual provisions must be read as a whole. See Gillette v. Gillette, 835 N.E.2d 556, 561-62 (Ind. Ct. App. 2005).

Again, in his appeal Charles asserted that the trial court erroneously ordered him to pay Frani’s attorney’s fees. The panel of the Indiana Court of Appeals agreed stating, “Under the plain terms of their premarital agreement, Husband and Wife must pay their own attorney’s fees.”

In the March 11, 2010 decree of dissolution of marriage, at paragraph three, Judge David referenced the September 2009 order that found the premarital agreement to be “valid and enforceable” and again restated that. Nonetheless, in paragraph 41, David ordered Charles to pay $5,500 of Frani’s attorney’s fees. The panel found, “That order is contrary to the terms of the premarital agreement, which the court reaffirmed in paragraph 3 of the same decree to be “valid and enforceable.”” This was not a simple mistake on Judge David's part. Judge David was specifically told that paragraph 41 was contrary to the parties' agreement as he had stipulated in paragraph three of the same document was valid and enforceable. Judge David simply ignored the wishes of the parties and Indiana contract law and decided to make his own law instead; specifically that if one party has greater financial resources or potential then he pays.

It was this concept of potential that Judge David has often used when making decisions which are contrary to law. In child support payment cases judges are allowed to make orders contemplating the potential income a parent could earn if that parent is currently unemployed or underemployed and had a history of employment during the marriage. See Indiana Child Support Guidelines [ICSG] at Section 3(A). However, “the guidelines are not meant to force persons to change careers or work up to their full economic potential.” See Matter of Paternity of Buehler (1991), Ind. App., 576 N.E.2d 1354.

Yet, one of the things Judge David liked to do was say that a parent who may have been a stay-at-home parent had the potential to earn substantial income by entering the workforce if he took custody of the child from that parent. That is clearly against established law and the ICSG which state a parent cannot be forced to into the workforce just to maximize child support payment obligations.

Another thing Judge David would do in denying or restricting parenting time is say that a parent had the potential to abuse, neglect or harm the child. He would make this basis upon his own arbitrary standard. Indiana Code 31-17-4-2 states, “The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.” [1997]

However, parenting time may not be denied or restricted unless the court finds that “the visitation might endanger the child’s physical health or significantly impair the child’s emotional development.” See Lasater v. Lasater, 809 N.E.2d 380, 400-401 (Ind. Ct. App. 2004). Even though the statute uses the term “might,” the year following passage of the law the appeals court interpreted the language to mean that a court may not restrict visitation unless that visitation would endanger the child’s physical health or emotional development. See Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), reh’g denied, trans. denied. This is why it is important to know case law as I do.

Judge David has long experienced this God complex where he decides, based upon his own experiences, wishes or assumptions what would be best for litigants or society in general regardless of the law, wishes of the parties or what is actually best for those affected by his decisions. Just as in this immediate attorney fees case he did the same thing in the Fourth Amendment case of Barnes v State where he declared void an Indiana statute giving citizens the right to resist an unlawful entry into their homes.

Here, the Indiana Court of Appeals was rather clear about David's judicial activism – “Accordingly, we conclude that the trial court erred as a matter of law when it ordered Husband to pay $5,500 of Wife’s attorney’s fees. That part of the court’s order is contrary to the plain and unambiguous language of the parties’ premarital agreement and contrary to the court’s own unequivocal determination that the agreement is “valid and enforceable.”” [emphasis added]

Reversed and remanded with instructions.
Justices BAKER, and SHARPNACK, Sr., concur with Justice NAJAM

Still, there are people out there who hold a strange allegiance to Justice David and feel that he does no wrong. For those of us who respect the law and hold such documents as the Bill of Rights or the Indiana Constitution sacred and who value our personal liberties – we will be voting NO on the Justice David retention question on the November 2012 ballot.

If you need assistance with selecting an attorney or getting information about a judge please contact my scheduler. to make an appointment to meet with me.

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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