ILNews

Ruling: Magistrate improperly heard support case assigned to special judge

Dave Stafford
September 30, 2013
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A father whose lawyer was surprised to see a magistrate presiding at his child support modification hearing that had been docketed with a special judge won a new hearing from the Indiana Court of Appeals on Monday.

In William A. Asher v. Stephanie J. Coomler 49A04-1302-DR-71, William Asher was ordered to pay 78 percent of the educational expenses for his daughter after Magistrate Kimberly Mattingly conducted a hearing in Marion Superior Court. Asher’s attorney had objected to Mattingly presiding. Special Judge S.K. Reid had been selected to hear the matter under Trial Rule 79 after Asher had moved for a special judge.
 
 “By the express terms of T.R. 79(I)(2)(a), only a judge pro tempore, temporary judge, a senior judge appointed by Judge Reid could preside under such circumstances. Further, T.R. 79(I)(2)(b) is inapplicable since Judge Reid was the regular judge of Civil Division 14 at the time of hearing. Because a magistrate is not within the class of judicial officers specified in T.R. 79(I)(2), Magistrate Mattingly could not preside at the hearing,” Judge Patricia Riley wrote for the panel that included Judge James Kirsch and Chief Judge Margret Robb.

“Because Father objected to Magistrate Mattingly presiding over the case at the first hearing, no further objections were required,” Riley wrote. “Therefore, the Order is without legal effect. … Accordingly, we reverse and remand with instructions to the trial court to permit the parties to select a successor special judge in accordance with the procedures specified in T.R. 79(I)(1).”

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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