Indiana Court of Appeals Remands Scarberry Custody Case to Commissioner Pancol

My head is spinning as I try to wrap my thoughts around the practicality, or lack thereof, of the Order from the Indiana Court of Appeals issued on 30 June 2011 in the case of Scarberry v Scarberry.

Briefly, Craig Scarberry is the Anderson, Indiana man who lost custody of his children in November 2010 because Madison Superior Court Master Commissioner George G Pancol found that Craig had changed his religion from Christian to agnostic and was therefor unfit to have custody of his children. The order was appealed and a Motion to Stay (not enforce) the order was filed which was granted, resulting in the children being returned to the previously practiced 50/50 parenting time and joint legal custody. Pancol recused himself during that process.

The immediate Order states, “Pursuant to Indiana Appellate Rule 37(B), this cause is remanded to the Madison Superior Court for entry of findings of fact and conclusions of law. No hearing shall be held nor new evidence received. This Court retains jurisdiction over this appeal. The Madison Superior Court is ordered to file with this Court new findings of fact and conclusions of law that are compliant with Indiana Trial Rule 52(A) within (20) days of the date of this order.”

Here is Indiana Appellate Rule 37(B) “Effect of Remand. The Court on Appeal may dismiss the appeal without prejudice, and remand the case to the trial court, or remand the case while retaining jurisdiction, with or without limitation on the trial court's authority. Unless the order specifically provides otherwise, the trial court or Administrative Agency shall obtain unlimited authority on remand. “

My understanding of this Order is, the Court of Appeals does not believe that there is sufficient findings and conclusions upon which they can review to determine if custody of the children was properly modified and therefore the trial court needs to redo its findings and conclusions. The argument before the Court was not whether the trial court improperly modified custody, but rather, whether the modification was improperly based upon Mr Scarberry's religious preference. It is clear upon a reading of the so-called findings and conclusions that such was the case.

I have previously written An Examination of the ORDER in Scarberry v Scarberry where I detailed the deficiencies in the Order and the basis for the modification being based solely on Craig's religious preference. By statute the trial court was required to examine and make its judgment based upon no less than eight detailed factors. See IC 31-17-2-8.

The remand Order seems contrary to the purpose of this appeal and the facts as they stand. Of great importance is that Master Commissioner George G Pancol has already recused, that is he abdicated in this matter. Yet, the Court of Appeals is now, in effect, giving Pancol a chance for a “do over”. I don't believe that anyone can have a doubt that Pancol will not issue new findings that are prejudicial and biased against Craig. In Pancol's bizarre and rambling Order of Recusal he so much as stated that he was correct in making the order but will recuse anyway.

The attorney handling this appeal, Indiana Civil Liberties Union director Ken Falk, is in no enviable position. Normally a reviewing court would “vacate and remand” with instructive guidelines for a new hearing. This means that the order having been appealed would be tossed-out, as though it never existed, and that a new hearing would be held. The trial court would then issue new findings consistent with instructions by the Court of Appeals. In this case it would be that the judge is not to use the parents' religious preferences as a basis for determining custody.

However, Pancol abdicated. The normal procedure then would be to select a new judge. In the recent Oklahoma decision in Casey v Casey the Court of Appeals ordered that “The cause is reversed and remanded with directions for the trial judge to certify his recusal and for the case to be transferred to a different judge for determination of the property division.” In Scarberry v Scarberry the issue is the division of time with the children and who gets to make those important decisions regarding their health care, religion and education, not property as in Casey v Casey. Just as in Casey the new judge could look at the record [transcript of the hearing] and make a judgment.

It is difficult to understand why, here, the Court of Appeals wants the judge who is no longer the presiding judge in the case to go back and rewrite his so-called findings and conclusions. I will be fervently searching for any such precedent.

Ultimately, I see this case being litigated again based upon the continued failure of the mother, Christine Porcaro, to act as a responsible parent and her continued facilitation of violence and threats of violence towards Craig occurring around the children.

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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.