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Opinions Nov. 5, 2013

November 5, 2013
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Indiana Supreme Court
Jason Wilson v. Kelly (Wilson) Myers
71S03-1305-DR-399
Domestic relation. Reverses modification of custody. Finds an abuse of discretion in the way this modification was carried out and ordered as it never mentioned whether the modification was in the best interest of the children or noted any substantial change in any of the factors enumerated in I.C. 31-17-2-8. Orders an evidentiary hearing and inquiry into in-camera interviews. Since the two children have already been pulled from their Indiana school system and are attending school in Michigan, this status quo should continue until further order of the court as to minimize further disruption to the kids.

Indiana Court of Appeals
Heather Herren v. Jerry Dishman
18A04-1304-SC-162
Small claims. Affirms an order of replevin returning custody of a dog to Jerry Dishman, after Heather Herren obtained an out-of-state protective order granting her custody and control of any animal owned, possessed, kept or held as a pet by either party. The small claims court erred in refusing to accord full faith and credit to the North Carolina protective order, but because Herren neither owned nor possessed the dog at the time the protective order was issued, she was not entitled to custody.

Andrew Wann v. State of Indiana
32A01-1303-CR-123
Criminal. Affirms order requiring Andrew Wann to serve 90 days of a suspended 365-day sentence for conviction of Class A misdemeanor possession of marijuana after a probationary urinalysis tested positive. The panel rejected Wann’s arguments that the urinalysis report was admitted in violation of his due process rights and that the court imposed a sentence that contravened statutory authority because time served or credited in jail or on probation exceeded 365 days.

Ritchie Hodges v. State of Indiana
06A01-1210-CR-466
Criminal. Reverses trial court order dismissing a claim for post-conviction relief from the revocation of a conditional release to placement in community corrections. The court held that a claim of ineffective assistance of counsel at a hearing to revoke placement is a claim that conditional release was unlawfully revoked, and therefore subject to a claim under Post-Conviction Rule 1(1)(a)(5).

State of Indiana v. William Gilbert
49A05-1303-CR-140
Criminal. Reverses suppression of evidence in a drunken-driving case in which a motorist was taken to a roll-call station where a breath test was administered. Police had probable cause to seize Gilbert after he allegedly ran a stop sign and police smelled alcohol and observed him stumble as he exited his vehicle. His rights under the Fourth Amendment therefore were not violated, the panel ruled.

In the Matter of the Termination of the Parent-Child Relationship of: S.L. & D.L. (Minor Children) and K.M., (Mother) & D.L.,(Father) v, The Indiana Department of Child Services
85A02-1304-JT-308
Termination of parental rights. Affirms trial court termination order for mother and father, concluding there is clear and convincing evidence to support the trial court’s findings and the court’s ultimate determination that there is a reasonable probability that the conditions that resulted in the children’s removal or the reasons for placement outside the home will not be remedied.

D.B., et al., v. Review Board of the Indiana Department of Workforce Development, Department of Workforce Development, and Anderson Transit System, Inc.
93A02-1301-EX-71
Civil. Affirms review board’s denial of school bus drivers’ application for unemployment compensation. Rules the board did not interpret the vacation provisions of Indiana Code Section 22-4-3-5, enacted in 2011 and 2012, too broadly. Presumes since the Legislature has held that mandatory vacation or shutdown period does not entitle employees to unemployment compensation, General Assembly did not  intend to change the common law beyond what its enactments and fair implications allow.  

Anthony E. Boyd v. WHTIV, Inc. and Walter Tarr, IV
49A05-1303-PL-107
Civil plenary. Reverses both the trial court’s denial of Boyd’s motion to correct error and its grant of summary judgment in favor of WHTIV and Tarr. Holds even though Boyd took 33 days to respond to WHTIV’s and Tarr’s motion for summary judgment, Trial Rule 6(E) allows for the extra time because the motion was delivered by mail. Also, since Boyd was denied additional time to complete discovery, the grant of summary judgment was premature.  

Dawn Willsey v. State of Indiana (NFP)
24A01-1302-CR-117
Criminal. Affirms 16-year aggregate sentence following guilty plea to two counts of burglary, Class B felonies.

James W. Avery v. Cynthia L. (Avery) Howe (NFP)
18A05-1301-DR-28
Domestic relation. Affirms trial court’s dissolution decree awarding 60 percent of the marital estate to James Avery and 40 percent  to Cynthia (Avery) Howe.

A.C. James, Jr., v. State of Indiana (NFP)
02A03-1304-CR-108
Criminal. Affirms conviction of murder and criminal recklessness, a Class D felony.

Brandon Titus v. State of Indiana (NFP)
79A02-1305-CR-460
Criminal. Reverses denial of Titus’s petition for modification of convictions and remands to the trial court for further action consistent with this opinion. Holds the trial court’s discretion was limited to determining if Titus had complied with the terms of the plea agreement. Therefore, the court abused its discretion when it considered whether Titus would or could pursue a career in law enforcement.  

Eric Powell v. State of Indiana (NFP)
49A02-1303-CR-226
Criminal. Affirms conviction of Class A misdemeanor possession of marijuana. Finds police officer’s request for Powell’s identification and search for outstanding arrest warrants were reasonable under Article 1, Section 11 of the Indiana Constitution.

The Indiana Tax Court did not submit any opinions by IL deadline. The 7th Circuit Court of Appeals did not submit any Indiana opinions by IL deadline.
 

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  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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