It has been awhile since I have posted an installment in this series but apparently by raising the ire of enough losing attorneys I have gained more credibility and requests for assistance. I am now getting back to a level of cases that affords me some leisure time again.
In propounding support for his effort to have the Indiana Supreme Court order me to stop assisting parents engaged in high conflict child custody battles mitigate their conflict Michael Witte has claimed that the public needs to be protected from my advice. Particularly he has claimed, “The public interest requires that Showalter be enjoined from the unauthorized practice of law.” Such a claim sounds innocuous enough and I would gladly go along with it. However, it is Witte's implication of what constitutes UPL – acting as a watchdog over attorney's actions – that will have a chilling effect on child advocates who wish to reduce parental hostilities. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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On 13 May 2014 G. Michael Witte, Attorney No. 1949-15 filed a Verified Petition to Enjoin the Unauthorized Practice of Law against yours truly. In this series of postings I will present to you some information about Mr. Witte, why Indiana Supreme Court Justice Steven David denied my motion to reinstate a felony charge against myself, what Indiana judge recently said I am smarter than most attorneys, and why attorney Vanessa Lopez Aguilera complained. More significantly though I will demonstrate how Mr. Witte and his ilk are attempting to harm children and deprive parents of opportunities to amicably and efficiently resolve their child custody disputes consistent with the policies of the State of Indiana.
Witte's claim that the “public interest” – which he purportedly represents – “requires” that I be enjoined from further reducing parental hostilities and neglect of children implicitly states that those who feel that my assistance is of benefit are in error. Those who declare their support of a service through a recommendation are said to endorse that service. A common marketing strategy is the use of an endorsement. This occurs in politics through other politicians or activists, products through the use of celebrities and sports stars, and academia through peer review. If Witte is correct in his assertion then let's see who is incorrect – in his view.
Previously in this series I have mentioned the Craig Scarberry case. Witte alleges specifically that it was my input to the attorney representing Mr. Scarberry that is illustrative of from what the public needs protected. That attorney, Ken Falk, who is the legal director of the American Civil Liberties Union of Indiana, considered my recommendations, followed those and when success was achieved in the Indiana Court of Appeals told Mr. Scarberry “Don't thank me, thank Mr. Showalter because it was his ideas that got your children returned.” Subsequently while in Mr. Scarberry’s care his daughter was again able to receive necessary medical treatments that the mother refused to allow while she had custody. Mr Witte considers that a negative result.
Bryan Ciyou is a well known and respected family law attorney who specializes in appeals. A client of his was embroiled in a hostile relationship with the former spouse. Much of the hostility was the result of the client’s personality issues and the other parent’s refusal to communicate. This client is now enjoying a better relationship with the children, has a more productive life, has nearly eliminated any depression indications, and is becoming more financially secure. Additionally, the litigation has nearly come to an end although we expect some new attack to come at anytime. The parties’ children now appear less anxious and are feeling fewer effects of high conflict parenting. Mr Witte considers these negative results.
Recently I attended Justice Steven David's In-Service program and was speaking with Judge Jeffrey Edens of the Boone Circuit Court. Edens replaced Judge David when he went to the Supreme Court. Interestingly, Judge Edens represented my former wife during our dissolution proceedings. We were less than friendly with each other at that time as I felt his actions exceeded the ethical bounds by which one should adhere to when advocating for a client in a child custody proceeding. As we were discussing some of the points made during the In-Service I made reference to my continued frustration that so many of these college educated professionals don’t appear to understand what is going on with these children from the child’s perspective yet I, who didn’t attend college, is capable of doing so. Edens acknowledged that I provide valuable input on public policy and am a benefit to children. Mr Witte considers that a negative result.
Judge Edens also said not to think any less of myself because I don’t have any college training and that I am much more intelligent than many who do have college degrees. I do assure you that I have always thought highly of myself and won’t think any less of myself because I lack some worthless piece of paper.
When Craig Scarberry was desperately seeking assistance on regaining the relationship with his children after Magistrate George Pancol ruled Scarberry unfit to parent because he was “agnostic” Scarberry contacted the Office of the Governor, Mitch Daniels. While no one in the executive or legislative branch could intervene on his behalf to reverse such a miscarriage of justice Scarberry was given the name of someone to contact who could help in child custody matters. The person recommended to him by the governor’s office was yours truly. Mr. Witte considers the governor or his staff to not be intelligent enough to recommend someone of competence to Indiana citizens whose children are being harmed as a result of inappropriate or, as in Scarberry’s case, illegal court orders.
CONCLUSION
Mr. Witte has not produced one Indiana resident who has alleged that he or she has been harmed by the assistance provided by me. No one has come forward to allege that he or she needs protected from the information I offer or questions I ask. Quite to the contrary parents and children throughout Indiana thank me for providing the insights, guidance, and motivation that have improved their lives and relationships. The recommendations that I have made to Indiana legislators or judicial officers have become part of the Indiana Code, the Indiana Parenting Time Guidelines, and the Indiana Child Support Guidelines. Additionally, schools and other institutions in direct contact with children have adopted my recommendations. Children throughout Indiana are experiencing better outcomes because of my actions.
That is precisely what I want. I don’t want awards, I turn down offers of acknowledgement, and I don’t want the State or anyone else providing emolument for my public policy input. The only reward I seek is the personal satisfaction of knowing that the effects of high conflict parenting and divorce are being mitigated for the children.
That also is precisely what Mr. Witte doesn’t want. He wants to see litigation continue, parents bitter and hostile towards each other, parents emotionally and financially devastated, and ultimately for children to suffer the adverse consequences which result in more legal proceedings and presumptively the use of attorneys. Mr. Witte is all about the money -- money going to attorneys. The only threat I pose is lose of revenue for attorneys. It is Witte from whom the residents of the state of Indiana need protected.
UPDATE
I have received a settlement proposal this week from the Disciplinary Commission. It is currently being reviewed by interested parties. I will do a post about it soon.
Upcoming segments in this series will include
XII - The Response Filed
If you would like to also contribute any information about this matter or participate in the Response then please contact me.
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. 
Wednesday, August 27, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part XI Who has recommended me and my Conclusions
Thursday, August 21, 2014
The Importance of Timing and Preserving Issues for Appeal
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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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Wednesday, June 25, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part IX Interview with the Complainant: Attorney Vanessa Lopez Aguilera
On 13 May 2014 G. Michael Witte, Attorney No. 1949-15 filed a Verified Petition to Enjoin the Unauthorized Practice of Law against yours truly. In this series of postings I will present to you some information about Mr. Witte, why Indiana Supreme Court Justice Steven David denied my motion to reinstate a felony charge against myself, what Indiana judge recently said I am smarter than most attorneys, and why attorney Vanessa Lopez Aguilera complained. More significantly though I will demonstrate how Mr. Witte and his ilk are attempting to harm children and deprive parents of opportunities to amicably and efficiently resolve their child custody disputes consistent with the policies of the State of Indiana.
Response to Petition to Enjoin the Unauthorized Practice of Law * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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State of Indiana
v.
Stuart Showalter
When public agencies, resources, and monies are spent in enforcement actions we hold as a society that they should serve the public good. They should not however be used to vilify, harass, or impede upon the liberties of another individual. Civil courts and civil causes of actions are available remedies for people who feel they have a legitimate grievance with another individual. This is not to say that an individual cannot be the target of an enforcement action. Individuals are primarily the targets of public enforcement actions but public enforcement is to be on behalf of the people. In this case Mr. Witte is to be acting as relator for the public rather than surreptitiously on behalf of attorney Vanessa Lopez Aguilera. Lopez-Aguilera has been disingenuous in offers to settle a child custody action in which she represents a mother who abandoned the children to strangers, refuses to participate in parenting time, and is primarily concerned with financial matters. She has also alleged criminal unauthorized practice of law. So, I wanted to ask her why she has chosen to engage Mr Witte into her personal vendetta and why she feels so intimidated by me. I posed some questions to Ms. Aguilera and provide her responses as follows.
I started by telling her of my ongoing effort to inform and assist parents in obtaining competent family law counsel and a series of articles about family law attorneys and particularly about reducing parental conflict. I thanked her for providing her insight into child custody matters and entertaining my questions. I asked about her thoughts on the best way to resolve child custody disputes but got no answer as to a “best” method although protracted litigation appears to be favoured by her. Likewise, she provided no strategies to mitigate conflict among parents. As for her preference of mitigating conflict or engaging parents in an intense child custody battle she didn't have an answer although her actions seem to speak toward a preference for the latter.
An interesting revelation was when asked about the behaviours or qualities that she believes a good parent reflects, she had no answer. This may be because she is not exposed to parents who have positive parenting qualities as demonstrated by her client selection. I asked about one case in particular in which her client physically abused the child and then abandoned the child to people she claimed were not know to her well enough to make a character judgment. I asked for her to logically justify her claim that that parent should have primary custody of the child. Not surprising though she would not discuss this ongoing case.
I then asked about attorney traits and strategies. I described attorneys who use a strategy of attrition to try to win a case by doing things like filing repetitive and numerous interrogatories along with other motions in an effort to increase a responsive parent's legal bills. I asked if she did that but she would not answer although her record clearly speaks for itself in this regard. As for what traits she believes defines a competent attorney her response was eerily similar to that of parental qualities – unresponsive.
Finally I asked for a brief statement that I would present as a direct quote here as to what she believe makes her an ethical family law attorney who serves the best interest of children. Not surprisingly she was also not responsive to this question.
In my discussions with my client, whose wife is represented by Lopez-Aguilera, and his attorney I expressed my parenting advice and thoughts about the judicial officer who will hear the case. Not surprisingly the court filings and responses by the client to Lopez-Aguilera have clearly intimidated her and with good reason – my clients get favourable results from the courts. While my clients, under my tutelage and with the assistance of legal counsel, make good decisions and file competent and effective pleadings with the courts Lopez-Aguilera takes this as the unauthorized practice of law.
Keeping in mind that the Indiana Supreme Court has yet to choose to define the practice of law in its rules we are left to determine this on our own based upon the reasonable person standard. Just as with all clients of mine complained of and the one upon which Lopez-Aguilera bases her spurious claim, my clients have the assistance of legal counsel. Consistent with the opinion by the ABA House of Delegates on Undisclosed Legal Assistance to Pro Se Litigants “A lawyer may provide legal assistance to litigants appearing before tribunals 'pro se' and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.[en1] This does not, directly or by inference, mean that non-lawyers assisting a pro se client through the turmoil of a legal proceeding are engaging in the unauthorized practice of law as Lopez-Aguilera and Witte believe and propound to the Indiana Supreme Court.
Thus, what Lopez-Aguilera has sought to accomplish – protracted litigation amongst combative parents – by her false allegations is not consistent with the ABA's opinion nor the subjective UPL standards. Although I believe that it conflicts with the ABA opinion and the relevant rule[en2] in the Indiana Rules of Professional Conduct Lopez-Aguilera did obtain a court order for my client to disclose the name and nature of the attorney and assistance being provided to him. I think it would be technically valid and fun to ask for it to be certified for interlocutory appeal but, since her client has failed miserably at being a parent and Lopez-Aguilera is nothing more than a boiler-plate attorney it doesn't matter what she knows about my client.
Upcoming segments in this series will include
X - Who has recommended me and what I recommend
XI - The Charges
XII - The Response Filed
If you would like to contribute any information about this matter or participate in the Response then please contact me.
Notes
1] This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through February 2007. The laws, court rules, regulations, rules of professional conduct and opinions promulgated in individual jurisdictions are controlling.
2] Indiana Rule 1.2(C) A lawyer may limit the scope and objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
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.
Monday, June 16, 2014
Indiana Court of Appeals Issues Published Opinion on When the Right to Counsel Applies in Child Support Contempt Hearings
At the outset I present a few words from Brian Moore; 2015 Indiana Child Support Guidelines review scheduled for public comment * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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“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.
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)
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