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COA offers suggestion about judicial notice rule

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A paternity and child custody case has given the Indiana Court of Appeals a chance to examine a newly amended evidence rule for the first time, while simultaneously offering guidance to trial judges about using publicly accessible information to dispose of cases.

The state’s intermediate appellate court issued a ruling today in Paternity of P.R. and A.R.; H.B. v. J.R., No. 36A01-1005-JP-255, which for the first time gave a three-judge panel an opportunity to rule on a 2010 amendment to Indiana Evidence Rule 201 allowing courts to take judicial notice of any records from a court within this state.

This case out of Jackson Superior Court involves a mother and father who dated for four years but never married, and had two children in July 2004 and September 2005. Paternity was established in 2007 and the mother received sole custody, while the father was ordered to pay $150 per week in child support. In late 2009, the father asked to modify custody and support, based on the 27-year-old mother living with a man who had a past felony conviction for battery on a minor less than 14 years old, a conviction for supplying alcohol to a minor, and was reportedly being investigated by child protective services for alleged child abuse.

After a custody modification hearing, the trial court not only took that testimony into consideration but also a protective order that the mother had obtained against another man she had recently dated, relating to a felony battery conviction. The mother didn’t request a hearing or file any objection on that issue as allowed by Rule 201(e).

The trial court awarded custody to the father and allowed the mother parenting time, and also ordered that the father should receive a $60 per week credit to his child support arrearage for about 15 months.

On appeal, the mother argued that the trial court erred in considering the substance of the protective order she’d previously obtained because that document wasn’t admitted into evidence in this ongoing paternity and custody case.

The Court of Appeals noted that Evidence Rule 201 was amended in late 2009 and went into effect Jan. 1, 2010, meaning this is the first chance an appellate court has had to consider a case where it applies. Before the revision, a court could not take judicial notice of its own records in another case previously before it, even on a related subject with related parties. The revision states that the judicial notice can happen at any stage of the proceedings, and that a party doesn’t have to be notified before a court takes judicial notice.

The trial court properly took judicial notice of the protective order filed, the appellate judges found, and it doesn’t matter that the notice happened after the hearing was concluded.

“Although Mother was not afforded an opportunity to be heard before the court took judicial notice, Rule 201(e) provides that Mother could have made a timely request after judicial notice was taken,” Judge Nancy Vaidik wrote. “She, however, did not do this.”

Though the appellate panel concluded the trial judge correctly took judicial notice here, the appellate judges pointed out that a better course of action in this case would have been for the court to have given the parties notice and an opportunity to be heard before taking judicial notice and issuing an order.

“Undoubtedly, our information technology explosion has allowed our courts, as never before, to access reliable information that may aid in the just disposition of cases,” Judge Vaidik wrote. “Our Supreme Court, recognizing this, has encouraged courts to communicate with one another by establishing family courts and creating JTAC (Judicial Technology and Automation Committee), while liberalizing the judicial notice rule. But the danger of having a broad spectrum of information at the disposal of courts is that mistakes in input, inscription, and transmission can occur. To alleviate the danger of such errors, litigants must be given the opportunity to explain or respond to judicially-noticed information. We understand that the Indiana Rules of Evidence allow litigants to respond to this information at any stage of the proceeding, but we believe that, where practicable, the best practice is for courts to notify the parties before taking notice of and issuing a ruling which utilizes this information.”

Aside from that judicial notice issue, the appellate court also examined the custody modification and how the lower judge had issued findings on why changes were warranted under state statute and precedent. The panel affirmed the trial court’s ruling unanimously.
 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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