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In November 2010 the talk around the high conflict parenting campfire was that the Indiana Court of Appeals in Paternity of CH had granted trial judges the authority to appoint a Level II parenting coordinator over the objection of parents. A reading of the opinion though revealed that Mother’s basis for appeal was her contention that the court lacked authority to appoint the PC without a request by either party. What the mother, Kristy A. Lamm, failed to acknowledge was that the trial court on its own volition suggested PC to the parties and she, contrary to her assertion that
she did not agree to the appointment of a parent coordinator, had stated during the hearing, “absolutely . . . that would be great,” when the trial court announced that it was going to appoint a PC.
I was reminded of that when I read the 07 August 2014 opinion in Rippe v Rippe. In that appeal counsel for Appellant Jeanne Rippe, Timothy Logan, challenges three trial court orders. The final of the three addressed the issue of wife’s contempt for failing to disperse about a half million dollars to husband as ordered by the court. Instead of having a hearing Mr. Logan and counsel for husband on the record stipulated that they agreed to proposed findings and conclusions on the outstanding matters, including wife’s contempt finding, which the trial court adopted as its order ver batim.
The Court rightly opined, citing a long held standard, that the issue was waived by Mr. Logan failing to object to the agreement at the trial court level. The opinion states, “To the extent Wife’s arguments challenge the November 2013 order, we note that Wife agreed to the provisions in this order at the November 2013 hearing and did not raise any objections to it. She cannot challenge the agreement for the first time on appeal. See Northern Indiana Public Service Co. v. Sloan, 4 N.E.3d 760, 766 (Ind. Ct. App. 2014), trans. denied. The issues in this order are waived. See Einhorn v. Johnson, 996 N.E.2d 823, 828, n. 4 (Ind. Ct. App. 2013), trans. denied, (finding waiver where a party failed to make an argument to the trial court).”
As to the other two trial court orders, both of which were final appealable orders when issued in 2011 the Court also rightly noted that it lacked jurisdiction because a Notice of Appeal was not filed within 30 days. I take this opportunity to stress the importance of the time limitations in the Indiana Rules of Appellate Procedure. Time limits are not discretionary. Failure to file on time in a jurisdictional sense means that the document does not exist. Mr. Logan and all attorneys who file appeals should be aware of these most basic of rules but it is always an ongoing display of incompetence that I see when reading the opinion in Indiana child custody cases.
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.
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Thursday, August 21, 2014
The Importance of Timing and Preserving Issues for Appeal
Wednesday, June 11, 2014
28 Year Protective Order Term Vacated by Indiana Court of Appeals on Rehearing
I previously wrote about a 28 Year Protective Order Term issued against an Indiana woman which was upheld on appeal. The basis that the panel relied upon was that the woman had agreed to the extension of the PO. Typically a PO is extended by two years[en1] which would be a likely assumption. In agreeing to the extension the woman complained on appeal that she had not agreed to a 28 year term.
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As I assist parents through handling the process of child custody battles and litigation I often hear complaints about what the court did to them and how it isn't fair. I will again take this opportunity to restate that “fair” is a place with stinky animals, greasy food, and carnival rides. You don't find fair in a courtroom. Rather, the courts are intended as a due process forum. Due process is an opportunity to be heard.[en2] Being heard entails much more than simply saying your piece - presenting your story.
The traps that lawyers and, more often, self-represented litigants succumb to numerous and foremost is the opportunity to object. Failure to object constitutes waiver of the issue.[en3] Prior to the hearing is a request for special findings and conclusions of law[en4] which requires a judicial officer to state the specific evidence relied upon and reasons for the judgment. Special Findings place a higher standard upon the Court of Appeals to uphold a trial court when review has been sought.[en5]
Appeal is a method of challenging the judgment of the trial court by arguing that the trial court was in error or applied an improper standard in coming to its conclusion. Appeals must be taken within 30 days of the judgment being appealed or the issue is waived.[en6] If the decision of the appellate panel is not satisfactory to the Appellant then a rehearing or transfer may be sought by the Appellant. Rehearing is asking the Court of Appeals to reconsider the issue while transfer is asking the Indiana Supreme Court to consider the matter. Both must be filed within 30 days of the decision.[en7]
In this case AN properly sought rehearing which was granted for the limited purpose of examining the prior decision of this panel which upheld the 28 year PO term. The panel this time concluded that the 28 year term order was improperly issued based upon the need for specific findings that the women posed a threat of future violence. The panel relied upon a prior decision which stated;
For example, at the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or a fine. Furthermore, after the trial court has issued a protective order, it is a federal offense for a respondent to purchase, receive, or possess a firearm if the protected person is his current or former spouse, a current or former significant other, or a person with whom the respondent has a child. Thus, an improperly granted protective order may pose a considerable threat to the respondent’s liberty. [en8]
The matter is remanded to the trial court “to determine a reasonable extension of [the] protective order.” Thus, by availing herself of due process offered by the courts this women won't be lamenting and complaining until the year 2040 that she is under the burden of “an unlawful protective order.” Others should take heed.
notes
[1] see Indiana Code § 34-26-5-9(e)
[2] “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
[3] We decline to address an issue for the first time on appeal upon which the trial court did not rule and where the issue was not raised below. See GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (“As a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court.”).
In the absence of a specific and timely objection, a claim regarding the admission of evidence is not available on appeal unless it constituted fundamental error. Troxell v. State, 778 N.E.2d 811 (Ind. 2002).
In order to preserve for review a claim that the trial court erroneously admitted evidence, a specific and timely objection must be made. Tate v. State, 835 N.E.2d 499 (Ind. Ct. App. 2005), trans. denied.
The failure to object at trial waives any claim of error and allows otherwise inadmissible hearsay evidence to be considered for substantive purposes. Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000).
[4] See Indiana Rules of Trial Procedure, Rule 52(A)
[5] The trial court in this case entered findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we determine whether the evidence supports the findings and, second, whether the findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213 (Ind. 2012). We view the evidence in the light most favorable to the judgment and defer to those findings if they are supported by the evidence or any legitimate inferences flowing therefrom. Id. Legal conclusions, on the other hand, are reviewed de novo. Id
[6] The Indiana Rules of Appellate Procedure provide that a party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty days after entry of a final judgment. In re D.L., 952 N.E.2d 209, 211 (Ind. Ct. App. 2011), trans. denied (citing App. R. 9(A)(1)). “The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal.” Bohlander v. Bohlander, 875 N.E.2d 299, 301 (Ind. Ct. App. 2007) (citation omitted), trans. denied
[7] see Indiana Rules of Appellate Procedure (2014) Rule 54(B); Rule 57(C)
[8] Barger v, Barger, 887 N.E.2d 990, 993-94 (Ind. Ct. App. 2008)
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.
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Friday, May 23, 2014
Should Indiana Attorneys be presumed more competent than pro se litigants?
I have dedicated my life to seeking ways to minimize parental conflict in child custody proceedings and reduce negative outcomes for children. To that end I coach parents to help them focus on their well-being, that of their children, and ultimately the long-term parent-child relationships. Thus, I read every child custody decision by the Indiana Court of Appeals or Supreme Court which helps me understand the aggravating and mitigating factors of parental hostility. Reading and studying these decisions is equally a hobby as much as it is educational. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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As I am currently engaged in this accusation against me of unauthorized practice of law -- which cites the "public interest" -- it truly piques my interest when I see the ongoing admonitions by the reviewing courts of attorney's incompetence and failure to follow the rules while pro se litigants do so without reproach. Today I provide a brief account of this from a ruling handed down yesterday.
There two incompetent attorneys, John Andrew Goodridge and Steven L. Bohleber both of Evansville, Indiana, were instructed to follow the rules by the Court in this footnote.
We note both Father’s and Mother’s “Statement of Facts” section in each respective brief fails to comply with Indiana Appellate Rule 46(6)(c) (“The statement shall be in narrative form and shall not be a witness by witness summary of the testimony.”). Father’s fact section contains an excerpt from the decree of dissolution on page 1, and is followed by eighteen pages of verbatim transcript excerpts from the final hearing without narration or context other than to identify the speakers for each section of quoted testimony. Mother’s Statement of Facts includes the same excerpt from the decree of dissolution followed by six and a half pages of quoted testimony, and also fails to provide narration or context other than to identify each speaker.
Further, Father’s discussion section fails to cite authority, statutes, the appendix, or other part of the record in making his argument, and contains nine additional pages of excerpts from the transcript without context or analysis–indeed, twenty-seven of the thirty-three pages of Father’s brief is comprised almost exclusively of transcript excerpts. Citations to the record are required by Indiana Appellate Rule 46(A)(8)(a). The few citations to the record contained within Father’s “Statement of the Case” (as required by Indiana Appellate Rule 46(A)(5)) are inaccurate and do not align with the record. The failure to comply with our appellate rules may subject an argument to waiver or forfeiture. Richard v. Richard, 812 N.E.2d 222, 224 (Ind. Ct. App. 2004). We are not required to search the record on appeal or make a party’s case for him. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 729 (Ind. Ct. App. 2009). At a minimum, the failure to comply with the rules makes our review of the issue more difficult. However, we prefer to resolve cases on the merits. Howell v. Hawk, 750 N.E.2d 452, 457 n.3 (Ind. Ct. App. 2001). We remind counsel to comply with our rules in the future.
Yet Indianapolis father and pro se litigant Brian Moore not only complied with the rules but was successful, in part, on his recently decided appeal as this decision indicates.
Enough said!
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.
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Tuesday, April 8, 2014
Indiana Court of Appeals Reverses Primary Parenting Time Modification from Mother to Father
In the unpublished opinion of Gallagher v Gallagher a panel of the Indiana Court of Appeals provided some useful guidance on sufficiency of evidence and the substantial change in circumstances requirement to modify physical custody. Last month I wrote Shared Parenting Time, Joint or Sole Legal Custody, and Joint or Primary Physical Custody - Indiana which explains some of the custody laws and the processes involved. You may also refer to that for definitions of the custody terms used here. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In Gallagher the parents by agreement had shared legal custody while mother had primary physical. Father moved to modify the agreement based primarily upon an improvement in his condition, particularly the stability he has attained including plans to marry. At the hearing the GAL advised to maintain the status quo since both parties had shown improvement during his involvement and no parent could handle parenting on their own. I tend to agree with the GAL on the point that a child generally has a better outcome when two parents are involved in his life but it is unusual to hear it said.
Mother indicated that she wished to maintain the custody arrangement. Father and his fiancé testified that it was in the Children’s best interest to be in their Father’s custody. At the close of the hearing, the trial court concluded that a substantial change in circumstances had occurred and that modification of custody was in the Children’s best interests. As a result, the trial court maintained joint legal custody but awarded Father primary physical custody of the Children. Mother then appealed based upon her assertion that Father failed to meet his burden of demonstrating that there has been a substantial change of circumstances and that custody modification was in the Children’s best interests. Her argument has segmented in three challenges to the court's findings being; (1) Mother had exposed Children to several boyfriends; (2) Mother had allowed her Child to skip school; and (3) Mother’s mental health.
Lesson #1
When your position is attacked on appeal you have an obligation to defend it. Failure to do, as the appellate court explains, allows for a reduced burden to be applied by the party seeking to challenge the ruling. The court noted that Father did not file an appellee’s brief. When an appellee does not submit a brief, the court will not undertake the burden of developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, they apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006). Thus, if mother could demonstrate that it appears that the trial court erred then the appellate panel needs look no further to reverse.
Lesson #2
Know what a substantial change is before seeking a modification. Father was required to demonstrate that there was a substantial change in at least one of the statutory factors. Custody orders may not be modified unless “(1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors [enumerated in I.C. § 31–17–2–8].” I.C. § 31–17–2–21; Browell v. Bagby, 875 N.E.2d 410, 413 (Ind. Ct. App. 2007), trans. denied. Particularly the court found that 1]
The parties’ [C]hildren have been exposed to several of [Mother’s] boyfriends, including one who is now in prison; 2] The [C]hildren had better attendance when they lived with [Father]. They have adjusted well to both homes; and 3] [Mother] has improved regarding substance abuse issues. Her life is the most stable it has been.
As for 1] the appellate panel concluded, “Mother contends that even if her [boyfriend] is now in prison, it doesn’t support the finding that there was a substantial change in the circumstances. We agree. There is no evidence to suggest that [boyfriend’s] involvement with the Children significantly affected their interest in any harmful way.”
As for 2] the appellate panel concluded, “Evidence presented at trial shows that [child] was absent from school seven times, but five of those absences were excused. Mother argues that while this finding is supported by the evidence, it revealed nothing more than an isolated act of misconduct which does not support a modification of custody. We note that the noncustodial parent must show something more than isolated acts of misconduct by the custodial parent to warrant a modification of child custody. See Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App. 1996).”
As for 3] the appellate panel concluded, “Mother argues that the finding that her mental health, physical health, and substance abuse issues have improved only reaffirms her position that her life is stable. Mother therefore argues that the evidence did not support the modification of custody. . . . We agree with Mother that the evidence is contrary to the finding that there has been substantial change in the circumstances to justify a modification.”
Lesson #3
If you don't feel that the trial court acted within the confines of the law then appeal. This is a fundamental part of due process – the right to review of the trial court's ruling. There are limited circumstances in which an appeal may be taken or is justified. The appeal process is not an opportunity for a panel to rehear the case but, rather, is an opportunity to present to the panel that the trial court's ruling was contrary to law subject to the relevant standard of review. The panel in Gallagher explained the standard of review for parenting time modification:
When reviewing a custody determination, we afford the trial court considerable deference as it is the trial court that observes the parties’ conduct and demeanor and hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945–46 (Ind. Ct. App. 2006). We review custody modifications for an abuse of discretion “with a preference for granting latitude and deference to our trial judges in family law matters.” Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)), trans. Denied. We will not reweigh the evidence or judge the credibility of witnesses. Kondamuri, 852 N.E.2d at 946. Rather, we will reverse the trial court’s custody determination based only upon a trial court’s abuse of discretion that is “clearly against the logic and effect of the facts and circumstances or the reasonable inferences drawn therefrom.” Id. “[I]t is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by the appellant before there is a basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
In this case Father bore the burden of establishing that the existing custody order was unreasonable and should be altered due to a substantial change in circumstances which has occurred since the date of the previous custody decree and affecting the Children’s welfare. See Cunningham v. Cunningham, 787 N.E.2d 930, 935 (Ind. Ct. App. 2003). Although the trial court made these findings;
A] The parties’ [C]hildren have been exposed to several of [Mother’s] boyfriends, including one who is now in prison;
B] The [C]hildren had better [school] attendance when they lived with [Father]. They have adjusted well to both homes; and
C] [Mother’s] mental health and physical health has improved. She has improved regarding substance abuse issues. Her life is the most stable it has been. [Father’s] life is the most stable it has been in some time as well;
although mother did not agree.
Particularly mother contended that she did not have several boyfriends. The Court agreed: “[W]e find no evidence to demonstrate that Mother had exposed the Children to several boyfriends. The only evidence in the record indicates that Mother had two boyfriends. Mother began dating J.W., the father to her four-year-old son, in 2009, and he later became incarcerated for nonpayment of child support. Mother contends that even if J.W. is now in prison, it doesn’t support the finding that there was a substantial change in the circumstances. We agree. . . .[W]e find that the trial court erred in finding the evidence about Mother’s past relationships demonstrated she had exposed the Children to several boyfriends. As such, we find that there was no substantial change to warrant a modification of custody ”
Next mother argues that the child's absences from school were an isolated incident not sufficient to modify custody. The Court agreed: “Evidence presented at trial shows that T.G. was absent from school seven times, but five of those absences were excused. Mother argues that while this finding is supported by the evidence, it revealed nothing more than an isolated act of misconduct which does not support a modification of custody. . . .[W]e find that this was an isolated act, and we don’t find it to be so egregious so as to support a modification of custody. ”
Finally, mother contends that the finding that her mental health, physical health, and substance abuse issues have improved only reaffirms her position that her life is stable. Mother therefore argues that the evidence did not support the modification of custody. The Court agreed finding: “[T]he evidence is contrary to the finding that there has been substantial change in the circumstances to justify a modification. Rather, a deterioration of Mother’s mental or physical health would in essence support the trial court finding that there has been a substantial change. See Owen v. Owen, 563 N.E.2d 605 (Ind. 1990) (holding that a worsening mental condition may constitute a change in circumstances sufficient to necessitate modification of custody). It would therefore follow that an improvement in Mother’s mental and physical condition should not have necessitated the trial court to modify the custody.”
In this case the trial court articulated its' findings as to the statutory factors in which a substantial change had occurred which warranted a change in primary physical custody. However, the evidence was weak, was not ongoing, or did not support the findings consistent with the statutory mandate that there must be a substantial change in the various factors that would justify a custody modification. You can read more about the appeal process here.
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.
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