Opinions Nov. 15, 2017

Indiana Court of Appeals
George A. Buskirk v. Maureen Buskirk
06A01-1610-DR-2296
Domestic relation. Reverses the Boone Circuit Court’s order finding a postnuptial agreement unenforceable and ordering that George A. Buskirk pay Maureen Buskirk maintenance and her attorney fees. Finds the agreement was entered into as a reconciliation agreement, was made with valid consideration, set forth the parties’ intent to waive any rights to property of the other and is enforceable.

In the Termination of the Parent-Child Relationship of: G.C. (Minor Child) And R.C. (Mother) v. The Indiana Department of Child Services (mem. dec.)
49A02-1706-JT-1256
Juvenile termination of parental rights. Affirms the termination of R.C.’s parental rights to her minor child, G.C. Finds the Indiana Department of Child Services presented clear and convincing evidence to support the termination of R.C.’s parental rights.

Danny Smith v. State of Indiana (mem. dec.)
07A01-1606-PC-1379
Post-conviction. Affirms the denial of Danny Smith’s petition for post-conviction relief. Finds the post-conviction court properly denied Smith’s petition for relief, as he was not represented by ineffective counsel.

Ruben Pazmino v. 2444 Acquisitions, LLC (mem. dec.)
49A02-1701-PL-53
Civil plenary. Affirms and reverses in part the Marion Superior Court’s order denying Ruben Pazmino’s request to set aside default judgment against him in favor of 2444 Acquisitions, LLC. Finds Pazmino waived his right to argue the trial court lacked personal jurisdiction over him. Also finds the trial court did not abuse its discretion when it declined to set aside default judgment on 2444’s claims of tortious interference with contract, tortious interference with business relationship or breach of fiduciary duty because Pazmino failed to allege a meritorious defense. Finally, finds Pazmino has made a proper showing of a meritorious defense on 2444’s claim of personal liability. Remands with instructions to set aside default judgment on the personal liability claim.

Michael Stickles v. State of Indiana (mem. dec.)
49A05-1703-CR-506
Criminal. Dismisses Michael Stickles’ appeal of the Marion Superior Court’s order approving a probation department memorandum concerning the assessment of probation fees. Finds the trial court has subsequently found Stickles indigent to all probation fees, so the appeal is moot.

Jack A. Sheets v. A Progressive Realty, Inc., d/b/a Myers Trust and David Myers (mem. dec.)
20A03-1701-PL-161
Civil plenary. Affirms the entry of summary judgment in favor of David Myers and A Progressive Realty, Inc. in Jack Sheets’ action alleging tortious interference with an at-will employment contract. Finds the Elkhart Superior Court did not err in entering summary judgment in favor of Myers and Progressive.

Barbara A. Shirley v. Donna Jent (mem. dec.)
88A05-1703-ES-508
Estate, supervised. Affirms the Washington Circuit Court’s order removing Barbara A. Shirley as personal representative of the estate of Doug Bieghler. Finds the trial court did not abuse its discretion in finding Shirley should be removed as the personal representative of the estate and a special personal representative appointed.

In re Termination of the Parent-Child Relationship of: K.D.L., K.A.L.J., & K.R.L.L. (Minor Children) and K.D.J., Jr. (Father) v. The Indiana Department of Child Services (mem. dec.)
79A05-1705-JT-1151
Juvenile termination of parental rights. Affirms the termination of K.D.J., Jr.’s parental rights to his children, K.D.L., K.A.L.J., and K.R.L.L. Finds the Department of Child Services established by clear and convincing evidence the requisite elements to support the termination of K.D.J., Jr.’s parental rights.

Douglas W. Klemz v. Horizon Bank, et al. (mem. dec.)
64A05-1611-TR-2617
Trust. Reverses the Porter Superior Court’s order distributing the assets of the Larry A. Klemz Trust Agreement, in accordance with the proposed allocation submitted by the successor trustee, Horizon Bank, and with the approval of beneficiaries Justin Klemz and Brian Klemz. Finds the trial court erred in approving the distribution of the trust, as proposed by the successor trustee. Also finds Justin and Brian Klemz’s cross-appeal is not properly before the Indiana Court of Appeals. Remands for further proceedings. Judge Margret Robb concurs and dissents in part with separate opinion.

Mark S. Wright v. State of Indiana (mem. dec.)
46A03-1701-CR-230
Criminal. Reverses the denial of Mark Wright’s motion for additional earned credit time. Finds the post-conviction court denied Wright’s motion for additional credit time without determining whether he had exhausted his administrative remedies. Remands to allow the Department of Correction to respond to Wright’s claims and for the post-conviction court to determine whether Wright has exhausted his administrative remedies.

Deidre L. Thompson, J. Larry Thompson, and Thompson Quality Foods, Inc. v. Wells Fargo Bank, National Association (mem. dec.)
41A04-1704-CC-884
Civil collection. Affirms the grant of summary judgment to Wells Fargo Bank, N.A., in its collection action following Deidre L. Thompson, J. Larry Thompson and Thompson Quality Foods, Inc.’s default. Finds summary judgment was appropriate as a matter of law.

Chad M. Farrell v. State of Indiana (mem. dec.)
76A05-1705-CR-1002
Criminal. Affirms Chad Farrell’s convictions of Level 1 felony rape and Level 3 felony criminal confinement. Finds Farrell has failed to establish a reasonable probability that the jury relied on the same evidentiary facts to convict him of rape and criminal confinement.

David Howard v. State of Indiana (mem. dec.)
49A02-1704-CR-752
Criminal. Affirms David Howard’s conviction of possession of a firearm by a serious violent felon in phase one of the trial proceedings. Reverses the trial court’s determination that Howard is a habitual offender. Finds Howard has not demonstrated grounds for reversal on phase one of the trial proceedings. Also finds the record fails to demonstrate that Howard voluntarily waived his right to be tried by a jury as to the habitual offender enhancement. Remands for further proceedings.

In Re the Paternity of Kyler S. Potoski, Riley N. Potoski, and Ellie R. Potoski; Brent S. Potoski v. Nicole Stotts (mem. dec.)
37A03-1704-JP-947
Juvenile paternity. Affirms and reverses in part the Jasper Circuit Court’s order establishing paternity, custody and support of Brent S. Potoski and Nicole R. Stotts’ three minor children. Finds the trial court abused its discretion by awarding primary physical custody and sole legal custody to Stotts without a proper consideration of statutory factors. Also finds the trial court erred by including employer-paid health insurance premiums in its calculation of child support, and by failing to consider the factors set forth in the Child Support Guidelines for ascertaining which parent gets to claim the children as dependents for tax purposes. Finally, finds evidence supports the trial court’s finding that Stotts incurs costs for two of the children to be enrolled in daycare. Remands. Judge Margret Robb concurs with separate opinion.