Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com
Showing posts with label Indiana court of appeals. Show all posts
Showing posts with label Indiana court of appeals. Show all posts
On Monday 30 March 2015 the Indiana Court of Appeals delivered its opinion in S.B. v C.B. which was heard by the Honorable J. Steven Cox, Judge of the Franklin Circuit Court. The trial court transferred physical custody of the children to Father, modified parenting time, and ordered Mother to pay child support to Father. Attorneys for Mother on appeal were Andrea L. Ciobanu and Alex Beeman of Ciobanu Law, P.C. in Indianapolis, Indiana. They took a novel approach as to why the court was in error which, throughout the long history of child custody and support jurisprudence, has traditionally been the thesis of fathers’ objections which underpinned the Father’s Rights Movement.
Ciobanu and Beeman argued that “Father . . . has no ability to care for the children without significant reliance on others” and because Mother “has been the bread winner and maintained steady employment” throughout the children’s lives that the court erred in giving custody to Father and ordering Mother to pay support. Many of us have heard this argument made in court before, usually by the attorneys representing mothers. Child support proceedings would be prefaced by; “Mother has no ability to care for the children without significant reliance on others” and because Father “has been the bread winner and maintained steady employment” throughout the children’s lives Mother is best suited to provide care for the children, should be their primary custodian, and Father should be ordered to pay support for their care. It appears to me that the argument which Ciobanu and Beeman propounded to the Court is that when the standard that has been applied to men for generations is applied to women it is an error.
Mother and Father had divorced in 2006 but shortly after reconciled and two more children were born; the third in 2008 and the fourth in 2010. In 2013 they had an argument regarding text messages Mother had been exchanging with a male friend. Mother left the house, stayed at the home of her male friend, and was fired from her nursing job soon thereafter. The day after their argument, the parents agreed that Father, who was struggling financially, would relocate with the children to be close to Father’s relatives. Father and the children moved in with fraternal grandmother, and the children began attending public school locally. About three weeks after Father relocated with the children, he filed a petition to modify custody and abate child support. The trial court held a hearing on Father’s petition and issued an order granting Father primary physical custody of the children and awarding Mother parenting time but did not address Father’s request to abate child support.
At a subsequent hearing Father alleged that both Mother and Father were gainfully employed, that Mother and Father were earning $733 and $450 per week respectively, and that Father had been providing for the children without any financial assistance from Mother for over seven months. Father also reported that he was paying $140 per week in work-related childcare expenses and $43 per week in health insurance premiums for the children. The trial court ordered Mother to pay $315 per week -- 43% of her income -- in child support retroactive to the date of Father’s petition. Mother then appealed.
The panel of the Court of Appeals found that “the trial court had ample evidence from which to conclude a substantial change in circumstances had occurred since the initial custody determination and that a change in custody was in the best interests of the children.” In regards to child support payments the panel found that in “light of [the] evidence, and because the law is clear that a trial court may order support retroactively to any date from the filing of the petition to modify support, we conclude that the trial court did not abuse its discretion in ordering Mother to pay $315 in child support, retroactive” to the date of Father’s petition.
In Indiana the maternal preference is dying as quickly as efforts at a constitutional amendment to prohibit same-sex marriage and other social inequities that had long stood as the ethos of our prejudicial community. Younger judges, and more often female judges, are leading this change in attitude that mothers will no longer be handled tenderly and receive preferential treatment. Mothers and fathers are expected to provide nurturing, care and support for their children and the one who is most fit or circumstances will best contribute to the children’s well-being is going to receive the responsibility of providing for the children more of the time.
Judicial officers who have yet to embrace this modern concept of gender equity should be adequately informed of this through the effective presentation of evidence with corresponding commentary. It is not improper to question a judge’s potential or demonstrated bias.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
At the outset I present a few words from Brian Moore;
“Maybe if society has to start paying for attorneys for some of the parents who have been driven into poverty by relentless divorce litigation, people will start to see the financial devastation that is wrought by divorce and that lawyers are the only winners.”
The right to counsel in a judicial proceeding when one's liberty is in jeopardy is a fundamental right embodied in the United States[en1] and Indiana Constitutions. Indiana has held that where the possibility exist that a defendant in a civil contempt proceeding for child support enforcement faces incarceration that defendant has to be informed of the right to counsel prior to commencement of the proceedings.[en2] The question facing the Indiana Court of Appeals was what constitutes the possibility of incarceration?
In the instant case Brian Moore was brought before the court on a petition by his former wife, Kristy Moore, seeking 30 days incarceration for failure to pay child support. Brian filed a motion seeking appointment of pauper counsel which was denied by Marion Superior Court Judge Robert Altice. Altice explained that he would not be facing incarceration that day but instead, if found in contempt, a status hearing would later be held and the issue of appointed counsel would be revisited then. Mr. Moore was found to be in contempt following the proceeding in which he was compelled to participate and was without the assistance of counsel. The position of Altice was that since he had taken the possibility of incarceration that day off the table that Brian was not entitled to pauper counsel. Brian's position was that because the evidence gathered that day could be used as a basis for his incarceration at a later date that he was thus entitled to the assistance of pauper counsel. This appeal ensued.
In his Appellant's Brief Brian raised two issues, the first being: “Whether the trial court erred when it did not advise Father of his right to counsel at the contempt hearing or appoint counsel for him.” The second issue he raised was “Whether the Petitioner presented sufficient evidence to support the contempt finding.”
The appellate panel restated the issues writing: “Brian raises two issues. We address the dispositive issue, which we restate as whether the trial court improperly denied his request for the appointment of counsel.” The Court noted, “Because of our resolution of the counsel issue, we need not address Brian’s challenge to the sufficiency of the evidence.” A prior panel has ruled that the underlying support order was without merit and vacated it.[en3]
As for the denial of appointment of pauper counsel Brian propounded the following argument in his brief:
In denying Father's motion the court stated “we don't appoint pauper counsel on civil matters” Father contends that the court erred as a matter of law. In civil contempt proceedings if an alleged contemnor cannot afford an attorney the court must appoint one to represent him. In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987). In the civil matter of Lassiter v Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that "an indigent litigant has a right to appointment of counsel . . . when, if he loses, he may be deprived of physical liberty." The Indiana Court of Appeals held “that where the possibility exists that an indigent defendant may be incarcerated for contempt for failure to pay child support he or she has a right to appointed counsel and to be informed of that right prior to commencement of the contempt hearing.” In re Marriage of Stariha, 509 N.E.2d 1117, at 1121 (Ind. App. 1987).
The Court did not inform father of his right to counsel but instead said that it does not appoint counsel in civil matters and that “I'm ready to proceed, and I'm going to proceed.” In this instance Father's liberty was in jeopardy on the day of the hearing based upon the careful presentation of evidence, defenses or objections, and other procedures of court more aptly navigated by a trained professional – competent legal counsel.
The Court premised the denial on the position that he would not be subject to execution of the sentence without further hearing at which time the Court expressed its view that “it's probably appropriate that I have somebody sit with you.” Tr. p. 56 The future hearing was termed a “compliance hearing” Tr. p. 54 The extent of the hearing will be to determine if father has complied with the court's 06 June 2013 order.
The court committed a fundamental error when it held a hearing on Mother's Motion for Rule to Show Cause for Father’s alleged willful failure to pay child support following denial of his motion for pauper counsel. Mother had requested that Father be incarcerated for failure to comply with the court's child support payment order. At the conclusion of the hearing Father was found to be in contempt and a sentence of incarceration was entered, although suspended. A future compliance hearing date was set.
Father contends that although he was not incarcerated on the hearing day that nonetheless, consistent with Stariha, he had the right to counsel because the content of the proceedings, including his own statements may lead to his incarceration. The future supplemental proceeding, a compliance hearing, is not for the purpose of determining the basis for contempt – his ability to pay and whether such failure to pay was willful – but to determine only if the payments have been made as ordered between the dates of the two hearings in question.
Thus it was the 13 September 2013 hearing which is the basis of Father's potential loss of liberty and which, consistent with Lassiter, triggered his right to counsel. The evidence admitted for the finding of contempt against Father had been made at the 13 September hearing. This finding resulted in a sentence of 30 days in jail, suspended. Therefore, it was the 13 September 2013 hearing at which the facts were elicited that would determine whether Father had the ability to comply with the Order and if such failure to do so was willful.
Father contends that the Court erred as a matter of law in not informing him of his right to counsel before proceeding with the 13 September 2013 hearing, that he had a right to counsel at that hearing, and that the court did not find by clear and convincing evidence that Father had willfully violated the court's order. For these reasons Father contends that the record of the 13 September 2013 hearing should be stricken, that the matter be remanded to the trial court to conduct a new hearing, and at such hearing that Father have the opportunity to obtain counsel and have counsel present or the Court appoint counsel for him if the complainant still seeks imposition of a term of incarceration.
The Court of Appeals was quite succinct in it's ruling, the analysis portion of his argument which I provide here in its entirety:
Brian argues that the trial court improperly denied his request for counsel prior to sentencing him to thirty days in jail, all of which were suspended, for his failure to pay child support pursuant to the June 2013 order. We have held “that where the possibility exists that an indigent defendant may be incarcerated for contempt for failure to pay child support he or she has a right to appointed counsel and to be informed of that right prior to commencement of the contempt hearing.” In re Marriage of Stariha, 509 N.E.2d 1117, 1121 (Ind. Ct. App. 1987). This is so regardless of whether a private person or the State initiates the contempt proceedings. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct. App. 2005).
Here, there is a clear possibility that Brian is indigent. Furthermore, even though the trial court suspended the sentence and indicated it would reconsider the issue of appointing counsel prior to the compliance hearing, Brian clearly risked the possibility of losing his physical liberty as a result of the trial court’s contempt finding. Thus, if indigent, Brian was entitled to have counsel represent him at that hearing, not just at the subsequent compliance hearing. [emphasis added]
The panel concluded: “Brian has made a prima facie showing that the trial court erred by denying his request for counsel. We reverse and remand for the trial court to determine if Brian is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.
Reversed and remanded.
This case provides some significant ramifications. What I find most important is that Brian Moore did not acquiesce two erroneous decisions. When faced with imputed income that had no evidentiary basis he appealed, pro se, and won. Subsequently, when he was held in contempt for not complying with the erroneous order and without having had the assistance of counsel, despite his request, he again appealed . . . and won -- in a published opinion! Brian did what so many who complain about the courts do not – he availed himself of the due process rights granted to him under the Indiana Constitution. “This appeal was a huge amount of work and expense for me; as a self-employed person, time is money. I am glad that my work paid off, and I trust the Court of Appeals decision will help other people facing similar circumstances,” said Mr. Moore.
The reason that this opinion was published is because of the legal standard that it has now established in Indiana when it comes to the appointment of pauper counsel during child support payment contempt proceedings. That is, a court cannot escape appointing counsel be merely stating the incarceration is not an option at that moment when, at a subsequent hearing, the same evidence admitted at the instant proceeding may be used to deny a defendant of his physical liberty. If Kristy Moore does not seek transfer to the Indiana Supreme Court by 14 July 2014 then, consistent with the ruling in Moore v Moore (Ind. Ct. App. 2014) if a defendant “risk[s] the possibility of losing his physical liberty as a result of the trial court’s contempt finding . . . if indigent” he is “entitled to have counsel represent him at that hearing.”
At the outset here Brian mentioned the costs associated with protracted litigation and the expense that society will have to shoulder. This case clearly exemplifies the waste of time and resources that a vindictive and alienating parent can inflict especially when assisted by unscrupulous counsel. Kristy Moore and her attorney Jonathan Deenik have done just that. The June 2013 child support payment order which was the basis of the contempt hearing was the result of an erroneous support calculation after Kristy sought a modification. It was Deenik who submitted proposed findings and conclusions indicating that Brian Moore was capable of earning $50,000 per year which is the amount that Judge Altice imputed to Brian. However, in the 09 May 2014 decision on the appeal of that order another panel of the Indiana Court of Appeals stated: The trial court determined that Father was capable of earning $50,000 per year. This finding is not supported by the evidence and is clearly erroneous. When asked by Mother’s counsel if he was capable of earning $50,000 a year, Father testified that he had never made that much in his current field, which he had been in throughout the marriage and thereafter. At the time of dissolution, the parties agreed that Father was earning about $22,200 per year. Nothing in the record indicates that Father’s income potential improved, let alone more than doubled, since the dissolution.
On remand, the trial court is directed to reconsider Father’s weekly income and child support obligation.
Thus, if Brian's income at the time of dissolution is used to calculate support then he would likely have a negative support obligation and not be required to pay anything to Kristy. Because of Kristy's desire to sever the relationship between Brian and their children these parents spent three days in court, both have expended considerable resources fighting and the State of Indiana may have to pay Brian's cost of the appeal and pay for an attorney to represent him at any subsequent contempt hearing.
Often times parents who go through this end up financially, physically, and spiritually drained. They lack any resources to go forth and combat these injustices such as those with which Brian Moore was saddled. But Brian did not give in or give up. He availed himself of resources in the community and, with coaching, those within himself. As he said, “I could not have done this without the help of Stuart Showalter. His assistance in teaching me how to perfect an appeal while keeping me focus and goal oriented was invaluable. I am grateful that a highly respected Indiana attorney who specializes in appeals recommended Stuart to me.” I again feel justified in restating what I have often declared – the court system works for those who have the patience and fortitude to fully use it. But even with Brian's dual victories I can say there were no winners here.
The ultimate victims of Kristy's agenda are the two Moore children and taxpayers who are footing the bill both psychologically and financially to support her vendetta.
Notes
1] Freedom “from bodily restraint” lies “at the core of the liberty interest protected by the Due Process Clause.” Foucha v. Louisiana, 504 U. S. 71, 80. See also - Turner v. Rogers, 131 S.Ct. 2507 (2011); Mathews v. Eldridge, 424 U.S. 319 (1976)
2] Marriage of Stariha, 509 N.E.2d 1117, at 1121 (Ind. App. 1987).
3] Moore v Moore 09 May 2014
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Recent opinions from the Indiana Court of Appeals continue coming on child support issues coincidental to today's public comment session for amending the Indiana Child Support Guidelines. The latest concerns calculating child support arrears which produced a split opinion.
I like Judge Lynn Murray of the Howard Circuit Court because she gets it about children needing both parents, but I think she got it wrong on calculating the child support payment arrears of Michael Robinson. I am in good company on that miscalculation assessment. In her 15 May 2014 dissent in Paternity of D.M.Y. Judge Margret Robb began, “I agree with Robinson that the trial court erred in determining his arrearage, and therefore I respectfully dissent from the majority opinion affirming the trial court order.”
On June 20, 2012, the trial court conducted a hearing on Robinson’s petitions to modify support, determine arrears amount, and petition to show cause. The trial court found that as of November 16, 2010, Robinson was in arrears of his child support payments in the amount of $21,337.00. At the proceedings, the State introduced evidence about its interception on June 30, 2011 of $7,025.84 out of Robinson’s bank account. Robinson contends though that he was never credited for that amount. The State simultaneously introduced a document showing its calculation of Robinson’s arrears as of December 31, 2011. The exhibit indicates the amount of $7,025.84 as sitting in the clerk of court’s undistributed account. Robinson objected to the admission of the exhibit because “[i]t doesn’t accurately reflect they’ve distributed the money.” On September 4, 2013, the trial court issued its order, establishing Robinson’s arrearage at $13,055.00 as of July 29, 2013. Robinson appealed this determination.
Robinson contends that the trial court erred in its determination of a $13,055.00 child support arrearage because the court neglected to take into account the distribution of $7,025.84 which took place on January 3, 2012. Therefore, he maintains that by crediting the distribution, his proper arrears should be $6,029.16.
In reviewing the judgment, this court must determine whether the evidence supports the findings and whether the findings support the judgment. We will reverse a judgment only when it is shown to be clearly erroneous, “i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings.” For findings of fact to be clearly erroneous, the record must lack probative evidence or reasonable inferences from the evidence to support them. Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002). Thus to reverse the panel must find that the judgment wasn't supported by the evidence.
In my previous posting -- Indiana Court of Appeals vacates child support order based upon imputed income -- the appellate panel did just that in stating, “This finding is not supported by the evidence and is clearly erroneous.” The trial court order was then vacated. But the panel in Robinson's case didn't make such a ruling. Instead they found that Robinson did not timely appeal because although the immediate order being timely appealed included the miscalculation so did the court's September 18, 2012 order. In accepting the appeal for argument anyway Judges Riley and Bradford indicated that because “at the time the [$7,025] payment was made, Robinson was entitled to credit for it” that Judge Murray had made a correct calculation of his arrears because the credit should have appeared on the Clerk's record of payments.
But did the payment actually get credited to Robinson by the Clerk? Judge Robb didn't think so and she got out her calculator to confirm Robinson's claim. Here is what Robb wrote; Going back to the November 16, 2010 order—the last order to establish an actual arrearage prior to this most recent order—Robinson’s arrearage was set at $21,337.00. From that date to the date of the most recent hearing, Robinson owed $20,586.00 in child support. His total support obligation was therefore $41,923.00. Howard County Clerk’s Office records show that $15,000.00 from the attachment of Robinson’s savings account was paid toward his child support, a $7,025.84 check received by the Clerk’s Office on June 30, 2011 was released to Young on January 1, 2012, and payments of $8,625.00 were made by Robinson for a total child support payment of $36,039.84. His arrearage therefore should be $5,738.00. The trial court’s determination that Robinson was $13,055.00 in arrears therefore reflects that the $7,025.84 check was most likely not credited to him by the trial court ($13,055.00 - $5,738.00 = $7,317.00, which equates to the $7,025.84 check and two $146.00 weekly payments). In short, the trial court’s math does not add up and I would reverse the arrearage determination.
As for the timeliness of the appeal, Judge Robb says this; An actual, current arrearage was not established until the most recent order on September 4, 2013, and therefore I believe Robinson’s appeal of that order has timely raised the issue of whether the trial court included the $7,025.84 payment and properly determined his arrearage. I would remand to the trial court to recalculate Robinson’s arrearage with credit for that payment.
In Robinson's case I clearly think that two of three judges on his appellate panel got it wrong. I will be watching to see if he seeks rehearing [a new appellate panel] or transfer [asking the Supreme Court to hear it] and follow-up if he does.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
I received an email yesterday from a mother who filed a pro se appeal to the Indiana Court of Appeals about a week earlier. She was concerned that the father's attorney had filed a motion to dismiss her appeal. I believe her concerns are overstated as the motion filed by Russell B. Cate of Campbell Kyle Profitt LLP is without merit.
Coincidentally I posted “Why a Competent Attorney is a Must or How to Stay in Prison” just four days ago where I detailed the absurd failings of an attorney filing an appeal. Russell B. Cate seems to be on his way to upstaging the wholly incompetent Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana. The crux of Cate's support for his motion is that the petitioner failed to file an Appearance with the Indiana Court of Appeals pursuant to Rule 3.1 of the Indiana Rules of Trial Procedure. Well hold on to them there horses Cowboy Cate. I have a few points to make about this motion. To begin with if you are going to play Black Jack don't bust out the rules for Texas Hold 'em.
As prudent members of a society I feel that we are all obligated to look out for each other, alert those around us to hazards, and do what we can to protect our fellow man from harm. So, after I finished laughing following my perusal of the motion I came up with these additional thoughts which I freely share with you.
Respondent [Cate] has failed to understand or is attempting to confuse and frustrate the court in applying the Indiana Rules of Trial Procedure to a matter initiated pursuant to the rules of and is properly before the Indiana Court of Appeals.
Indiana Appellate Rule 16 provides that “[t]he filing of a Notice of Appeal pursuant to Rule 9 or Notice of Expedited Appeal pursuant to Rule 14.1 satisfies the requirement to file an appearance. Respondent in his Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court clearly demonstrates no injury from his unfounded belief that Petitioner was required to file an appearance in that he includes Petitioner's pro se service address in that document.
Regardless of Respondent's contention that Petitioner in this cause was required to file an Appearance pursuant to the Indiana Rules of Trial Procedure contemporaneous with the Notice of Appeal filed with the Indiana Court of Appeals dismissal would nonetheless be unwarranted.
Dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). However, the court prefers to resolve cases on the merits. Id. Mother did comply with the appellate rules and has not been ordered by the appellate court to supplement her filing with an Appearance. Such an order is generally presumed to be a prerequisite to entertaining a motion for dismissal.
“If an appellant inexcusably fails to comply with an appellate court order, then more stringent measures, including dismissal of the appeal, would be available as the needs of justice might dictate.” Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001).
Again, Respondent's fallacious argument aside, the courts have been reticent to award attorney fees in appellate cases except in the most egregious of circumstances. “A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious.” Manous v. Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005).
Respondent's motion is replete with inaccuracies, is meritless, and was brought in bad faith for the purpose of harassment, vexatiousness, or delay. Respondent's motion should be denied in its entirety.
Respondent's Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court should be dismissed and the Respondent be admonished for his vexatious filing. Notice as with the recent posting regarding Mr. Thomas F. Little I refer to the actions of the attorney as the party – the Respondent – because the lawyer has no skin in the game. When you employ an attorney to represent you then you have entrusted that attorney with the decision making authority that you relinquished.
This is the hazard of hiring attorneys from firms like Campbell Kyle Profitt LLP or Power, Little, Little, & Little. If you want to be well represented in a child custody hearing or on appeal them it may be wise of you to facilitate the knowledge of someone who reads every child custody decision by the higher courts and knows who are the competent and incompetent attorneys in Indiana. If you would like for me to teach to you the procedures for appeal, how to do research and how to make cogent argument as well as follow the rules then contact my scheduler.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
As a child custody policy advisor I have written and had child custody related legislation passed into law. My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March 2013 and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year. For parents I offer child custody based life coaching to help them maintain control of their lives and increase their fitness as parents so they can truly serve the best interest of their children.
