Justices deny transfer to child custody case, but David dissents based on decisions that ‘circumvent’ appellate rule

The Indiana Supreme Court has denied transfer to a child custody case reversed by the Court of Appeals of Indiana, but one justice dissented with multiple concerns, including the “increasing number of appellate opinions that explicitly circumvent Appellate Rule 65(E).”

In a Tuesday order, the high court declined to take the case of Ashley D. (Ramey) Day-Ping v. Charles T. Ramey III, 21A-DR-295.

On Aug. 20, 2021, the COA ruled the Johnson Circuit Court erred when it awarded sole custody of a child to his father.

The COA noted that during the modification proceedings, the trial court ordered Dr. Linda McIntire to complete a custody evaluation. The mother presented two experts to review McIntire’s report, but the trial court found “Dr. McIntire’s findings to be the more compelling, reasonable and consistent with the evidence.”

Reversing the trial court’s order, the COA called for a review of the evidence and to hold a hearing within 30 days.

“Based on the weight the trial court gave to father’s evidence and Dr. McIntire’s report, especially in light of the fact that a jury determined the father and girlfriend committed fraud when reporting the mother to DCS, we would like the trial court to reexamine the evidence considering the entirety of the circumstances,” Judge Melissa May opined for the unanimous COA.

Following the COA’s ruling, a petition to transfer filed by Ramey argued, “The Court of Appeals engaged in impermissible reweighing of evidence when it reversed the trial court’s order. The standard of review for custody modifications is an abuse of discretion and a judgment should only be set aside when it is clearly erroneous.”

While the petition was denied, Justice Steven David said he would’ve granted transfer for two reasons.

“First, I’m concerned that the Court of Appeals misapplied the standard of review by relying, in part, on information that was not available to the trial court and by reassessing the weight to be given to witnesses’ testimony,” David wrote. “I also believe it’s imperative to address the increasing number of appellate opinions that explicitly circumvent Appellate Rule 65(E), making the Court of Appeals’ decisions effectively final before we have an opportunity to review the merits. See, e.g., DeWees v. State, 163 N.E.3d 357, 367 (Ind. Ct. App. 2021), vacated; In re O.G., 159 N.E.3d 36, 46 (Ind. Ct. App. 2020), trans. denied; Yeager v. State, 148 N.E.3d 1025, 1029 (Ind. Ct. App. 2020), vacated.

“Appellate Rule 65(E) requires certification of an appellate opinion only after the expiration of time for all petitions for rehearing, transfer, or review; bypassing this rule encourages parties and trial courts to act in reliance on an opinion that has not yet been considered by the court of last resort,” he continued. “I dissent from the denial of transfer to strongly discourage this practice.”

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