Indiana Court Decisions – March 15-28, 2017

7th Circuit Court of Appeals

March 16

Criminal – Habeas Relief

McKinley Kelly v. Richard Brown

17-1244

A man who was convicted of murdering two people in an East Chicago confrontation in 1996 when he was 16 is entitled by subsequent U.S. Supreme Court rulings to a fresh look at his sentence, a dissenting 7th Circuit Court of Appeals judge wrote.

The majority of the three-judge panel denied and dismissed Gary native McKinley Kelly’s motion for an order authorizing the district court to entertain a second or successive petition for collateral review of denial of his petition for habeas relief under 28 U.S.C. § 2254.

“We agree with the State: Kelly was afforded all he was entitled to under [Miller v. Alabama, 132 S. Ct. 2455 (2012)],” Judge Daniel Manion wrote for the majority joined by Chief Judge Diane Wood. That decision held mandatory life sentences for juvenile offenders is unconstitutional, and the holding of Miller was made to apply retroactively in McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).

According to the trial court record, Kelly was 16 when he and several other people pulled their vehicles into an East Chicago driveway where three men were standing. Kelly and the others got out, an altercation ensued, and Kelly fired the first shot. Maurice Hobson, Karl Jackson and Vincent Ray, who had been in the driveway, were killed that night. A Lake County jury convicted Kelly of all three murders, but one conviction was vacated. He was given the advisory sentence of 55 years in prison on both sentences, to be served consecutively.

The Indiana Supreme Court in 1999 affirmed Kelly’s convictions, and the majority of the 7th Circuit panel dismissed his latest petition for relief, reiterating the trial court findings Indiana’s justices relied upon. Those included the facts that Miller was already on probation with the juvenile court; he shot multiple victims at close range; the killings showed a lack of respect for human life; and he was a risk to commit future crimes. The trial court noted his age as a mitigating factor in handing down the advisory sentence.

“The sentencing court had considerable leeway in fashioning Kelly’s sentence and in fact considered his age when deciding on the appropriate term,” the majority concluded in denying the petition for relief.

But dissenting Judge Richard Posner cited a litany of research and recent Supreme Court precedent regarding high rates of rehabilitation for youthful offenders to urge reconsideration of Kelly’s sentence, which he argued is a de facto life sentence.

“(T)he judge found that the killings were not planned and were tragic for everyone involved, including Kelly,” Posner wrote. The judge mused that there ‘have always been disagreements among young people,’ and that what would have been a fist fight or a knife fight in years past, today has elevated consequences because of the ubiquity of guns; not the stuff of a crime demonstrating the complete depravity and irredeemability of Kelly.

“We should allow him to pursue his Miller claim in the district court, which should conduct a hearing to determine whether he is or is not incorrigible.”

Indiana Supreme Court

March 17

Criminal – Drug Buy/Video

Marvin Beville v. State of Indiana

84S01-1606-CR-347

A Vigo County man facing drug charges will now be able to review a video of a controlled drug buy between himself and an informant after the Indiana Supreme Court decided that the disclosure of the video would be relevant and helpful to his case.

Marvin Beville was accused of selling marijuana to a confidential informant and was subsequently charged with dealing in marijuana and maintaining a common nuisance. The state informed Beville that it had a video recording of the controlled buy, but only offered to let Beville’s public defender review the video at the prosecutor’s office.

Beville then made multiple attempts to obtain a copy of the video for his own review, including filing a motion to compel. The state claimed the informer’s privilege allowed the withholding of any item that could reveal the informant’s identity.

The public defender argued that allowing Beville to review the video was “fundamental to (their) preparation,” and the video might not reveal the informant’s identity because the camera was likely pointed at Beville.

The Vigo Superior Court denied the motion to compel, but did not issue findings of fact or conclusions of law.

A divided Indiana Court of Appeals affirmed in a March 2016 memorandum decision, holding that the state showed a “paramount interest” in protecting the informant’s identity, though Judge Elaine Brown dissented. The Indiana Supreme Court also disagreed with the Vigo Superior Court and reversed its decision to withhold the video from Belville.

Chief Justice Loretta Rush noted that the court had not resolved how the informer’s privilege and three-part Dillard discovery test work together. Beville argued that the informer’s privilege does not apply to his case, and that even if it did, the state failed to carry its burden to withhold the video under the Dillard test because it did not prove its “paramount interest” in doing so.

The justices agreed with Belville that his motion to compel should have been granted, but the court took a different legal analysis to reach that conclusion. According to the court’s unanimous opinion, if the state properly asserts the informer’s privilege, then the Dillard test is not applicable to the case.

“Thus, the State need not show a ‘paramount interest’ in withholding evidence revealing a CI’s identity, even if a defendant can demonstrate particularity and relevance,” Rush wrote. “Rather, a valid assertion of the informer’s privilege shifts the burden to the defendant to demonstrate that disclosure of the requested evidence is either relevant and helpful to his defense or necessary for a fair trial.”

In a situation in which it is unknown whether the informer’s privilege applies, the state could ask the trial court to review the video in camera to determine whether it contains privileged information, Rush said. But given that the state failed to meet its burden of establishing the essential elements of the privilege, the chief justice wrote that the denial of the motion to compel was an abuse of discretion.

However, even if the state had proven that the video would have revealed the informant’s identity, the court found that Beville would have been entitled to the video, regardless, because he carried his burden of establishing that the evidence was “relevant and helpful to his defense.”
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March 28

Criminal – Felony Conviction Conversion

State of Indiana v. Wallace Irvin Smith, III

45S05-1611-CR-572

A Lake County man will retain his felony theft conviction after the Indiana Supreme Court ruled that an amendment to Indiana Code does not invalidate the man’s agreement to not seek misdemeanor treatment.

Wallace Smith pleaded guilty to Class D felony theft in 2000. As part of his plea agreement, Smith agreed that he would be precluded from later seeking misdemeanor treatment “in this cause.”

However, after the Indiana General Assembly amended Indiana Code 35-50-2-7 to allow sentences to be converted after they had been entered, Smith petitioned in 2015 to convert his felony conviction to a Class A misdemeanor. The trial court granted Smith’s petition, and the Indiana Court of Appeals affirmed in August 2016, finding that “the parties could not have contemplated the term ‘misdemeanor treatment’ could mean conversion after the original sentencing.”

The state appealed and the justices overturned the trial court’s grant of Smith’s petition. Justice Mark Massa, writing for the court, said that the terms of Smith’s agreement preclude a sentence conversion.

Specifically, Massa wrote the terms in Smith’s agreement were unambiguous and plainly encompassed sentence conversions in the phrase “asking for Misdemeanor treatment.” Further, the justice wrote the amendment to I.C. 35-50-2-7 did not create a new type of misdemeanor treatment “because the trial court is granting precisely the same relief.”

“As such, by filing a verified petition to convert his Class D felony to a Class A misdemeanor, Smith sought the very remedy he waived,” Massa wrote. “The General Assembly’s later amendment to Indiana Code section 35-50-2-7 did not alter this. Indeed, the language of Smith’s waiver, ‘in this cause,’ indicates no temporal limits as to his waiver of his sentence conversion.”

Further, Massa wrote the Legislature has not prevented waivers under 35-50-2-7, which means sentencing conversion “is thus a tool the State may use to strike a deal with defendants.” Thus, a ruling in Smith’s favor would deny the state the benefit of the plea agreement it arranged with him, the justice wrote.

Indiana Court of Appeals

March 15

Miscellaneous – Defamation

Virginia E. Mourning v. Allison Transmission, Inc.

49A02-1608-MI-1822

A woman who alleges that an Indianapolis company contributed to her employment termination may continue her defamation claim against the company and amend her tortious interference claim pursuant to Indiana trial rules, the Indiana Court of Appeals has ruled.

While Virginia Mourning was on medical leave from her job at Ternes Packaging, a group of employees under her supervision filed a complaint against her with the help of individuals at Allison Transmission Inc., which received supply-chain-management services from Ternes. Two weeks after her return from medical leave, Mourning was terminated.

One year later, Mourning sued Ternes in federal court and later added state law claims against Allison for tortious interference with an employment contract and defamation. The state law claims were dismissed for lack of subject-matter jurisdiction, and the district court granted summary judgment to Ternes.

Morning then filed her claims against Allison in Marion Superior Court, and Allison responded with a Trial Rule 12(C) motion to dismiss, alleging Mourning had failed to state a claim upon which relief could be granted and that her claims failed as a matter of law. The trial court granted Allison’s motion and entered judgment in its favor.

The Indiana Court of Appeals reversed the judgment in Allison’s favor.

Chief Judge Nancy Vaidik wrote for the appellate panel that Mourning’s case turned on the relationship between Trial Rule 12(B) and Trial Rule 12(C) motions – that is, “a T.R. 12(B) motion is essentially procedural, while a T.R.12(C) motion is substantive unless it is brought on T.R. 12(B) grounds.”

“Accordingly, where a motion for judgment on the pleadings raises a defense of failure to state a claim upon which relief can be granted, the motion for purposes of that defense should be treated in the same manner as a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim,” Vaidik wrote.

Mourning argued that the trial court erred in not treating Allison’s T.R. 12(C) motion as a T.R. 12(B)(6), which would have allowed her to amend her complaint and fix any defects. The appellate panel agreed, with Vaidik writing Mourning sufficiently pleaded her defamation claim, but not her tortious interference claim.

In order to prove tortious interference, a litigant must prove, among other things, a lack of justification for breach of a contract. Mourning attempted to do so, but as Allison pointed out, her factual allegations “’address how Allison allegedly went about causing (her) to get fired, not why it did so.’”

Thus, the dismissal of Mourning’s defamation claim was reversed, and the case was remanded to allow Mourning to amend her tortious interference claim.
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March 16

Civil Plenary – Insurance Coverage

Admiral Insurance Company v. Joseph Banasiak, as Personal Representative of the Estate of Habib Tagizadieh a/k/a Habib Zadeh, deceased and Jennifer Muehlman

45A05-1604-PL-859

An insurance company was not required to defend an Indiana doctor in a medical malpractice case because the applicable insurance policy had expired before the insurer received notice of the claim.

In 2008, Admiral Insurance Co. issued a professional liability policy to Dr. Habib T. Zadeh with an initial period from Sept. 21, 2008 to Sept. 21, 2009, and a retroactive date of Sept. 21, 2005. Zadeh elected to cancel the policy in July 2009 and that same day purchased an Extended Claim Reporting Period from July 2009 to July 2010.

Meanwhile, Jennifer Muehlman filed a complaint against John Doe, M.D., in October 2008, alleging that she sustained severe and permanent injuries as a result of the defendant’s negligence while she was treated for a fracture in her leg. Zadeh was served with a summons and complaint in Muehlman’s case, and he received a letter from the Indiana Patients’ Compensation Fund informing him that his insurance had lapsed.

The court entered default judgment against Zadeh in October 2010, and one year later, Admiral was informed that Muehlman was making a medical malpractice claim against Zadeh. Scott Mansfield, Admiral’s claims superintendent, informed Zadeh’s counsel in November 2011 that the insurer was denying the claim, noting although Muehlman’s complaint was first made in October 2008, Admiral was not informed of it until the policy was cancelled in July 2009.

In response, another attorney representing Zadeh, Joseph Stalmack, wrote to Mansfield that under Indiana Code 34-18-13-4, the policy was still in effect because no notice of cancellation had been received by the insurance commissioner. Stalmack cited the affidavit of Nancy Wilkins with the Department of Insurance, who said it was the department’s policy to forward copies of all letters to health care providers’ insurance company. Thus, Stalmack said it could be presumed that the letter Zadeh received about Muehlman’s claim was also sent to Admiral in October 2008.

In April 2014, Zadeh’s attorney, now acting as personal representative of the Zadeh’s estate, filed for declaratory judgment, listing Muehlman as a defendant and requesting a declaration that Admiral was required to defend and indemnify Zadeh against Muehlman’s claims. Admiral moved for summary judgment, but the trial court denied that motion and instead granted declaratory judgment, finding “Admiral did not notify the DOI, and thus the public, that a termination had been effectuated.”

The Indiana Court of Appeals reversed, with Judge Elaine Brown writing that because the first notification of Muehlman’s claim was made to Admiral in October 2011, more than a year after the policy expired, the notification was late under the claims made policy.

Further, Brown wrote I.C. 34-18-13-4 did not apply to Zadeh’s situation “given that the Policy was still in effect at the time of the filing of Muehlman’s complaint and the Policy had not yet been terminated by cancellation.”

“Thus, at the point at which Muehlman filed her complaint against Dr. Zadeh on October 6, 2008, the Policy was in effect,” Brown wrote. “We also note that the Policy terminated/expired by its own terms prior to Admiral receiving notice of Muehlman’s claims.”

Adoption – Right to Counsel

S.R. v. M.J.

41A01-1608-AD-2007

The Indiana Court of Appeals has reversed a Johnson County adoption after finding the mother was denied due process when the adoption court found that she had waived her right to counsel.

After S.R. gave birth to a child, C.J., a paternity court awarded legal and physical custody of the child to E.J., the father, and ordered S.R. to pay $25 a week in child support. S.R. was also ordered to complete a drug test to increase her parenting time, but she failed to successfully pass the drug screen.

S.R. then stopped visiting C.J. after E.J.’s new girlfriend, M.J., and her daughter moved in with E.J. in the summer of 2012. E.J. and M.J. were married in January 2013, and M.J. was appointed as C.J.’s temporary guardian when E.J. was deployed to Afghanistan.

When M.J. filed to adopt C.J. in 2014, she alleged S.R.’s consent to the adoption was not necessary. M.J. and E.J. were unaware of S.R.’s location at that time, and it was not until three months after the petition was filed that S.R. was served with notice.

Meanwhile, S.R. was incarcerated and after her release filed for a modification of her parenting time. The paternity court ultimately found that it would be in C.J.’s best interest for the mother to resume parenting time with a 20-week phase-in period.

S.R. was not notified of the adoption petition until after the paternity court order, so she did not file her objection until November 2014. During a hearing, S.R. requested she be appointed counsel, but the trial court found that she had sufficient income to pay for an attorney and, thus, had made a “voluntary choice” to proceed without counsel. However, after M.J. complained the court seemed to be acting as an advocate for the mother, the court appointed counsel for S.R.

The adoption court ultimately found that S.R.’s consent to the adoption was not necessary because she had failed to communicate with the child for at least one year. The court then entered an adoption decree, finding that allowing M.J. to adopt C.J. was in the child’s best interests, thus terminating S.R.’s parental rights.

The mother appealed, alleging the adoption court had committed reversible error by initially failing to appoint an attorney for her. The Indiana Court of Appeals agreed in an opinion reversing the adoption decree.

Judge Patricia Riley, writing for the panel, said it was “clear that the proceedings concerning Mother’s consent, including the time that Mother was not represented, ‘flowed directly’ into the adoption court’s ultimate decision to terminate Mother’s parental rights through adoption.” Further, Riley wrote the appellate panel disagreed with the contention that S.R. had made a “voluntary choice” to proceed without counsel because she made it clear that she would have preferred representation over proceeding pro se.

“Here, ‘nothing on the record demonstrates that the (adoption) court did anything to impress upon (Mother) the serious consequences she faced if she represented (herself),’” Riley wrote. “Accordingly, because we find that Mother has established a prima facie case that she was deprived of an essential right in violation of due process, we must reverse the adoption court’s adoption decree.”

The case was remanded for a new hearing on the issue of whether S.R.’s consent is required for the adoption, as long as she is given the right to retain or be appointed counsel.
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March 17

Criminal – Attempted Murder

Michael Miller v. State of Indiana

28A04-1603-CR-634

The Indiana Court of Appeals has ordered a new trial in a Greene County attempted murder case after finding the trial court incorrectly applied the standard of a “knowing” mens rea, rather than a “specific intent to kill.”

In August 2014, Jeremy Kohn and Kylee Bateman were sitting on the front porch of Kohn’s house laughing at a story when they saw Michael Miller and waved at him. Miller believed the couple was laughing at him, so he approached Kohn and cut his throat with a pocketknife.

Kohn recovered with 40 stitches. Miller was arrested the next day, told officers that he knew why he was being arrested and conducted a police interview after waiving his Miranda rights.

When asked during the police interview if he wanted to kill Kohn, Miller said he did not care. The state charged Miller with one count of Level 1 felony attempted murder and one count of Level 5 felony aggravated battery.

Miller’s attorney filed a notice of defense of mental disease or defect, and a court-appointed psychologist reported to the Greene Circuit Court that he believed Miller suffered from “Delusional Disorder, Paranoid Type” and further testified there was reason to doubt his sanity at the time of the crime and his competency to stand trial.

The trial court ultimately found Miller incompetent to stand trial and committed him to the Division of Mental Health Addictions. After treatment for schizophrenia, the hospital certified that Miller was competent to stand trial.

Miller then moved for a speedy trial, and the state filed a motion to compel him to submit to a psychiatrist’s examination. After the court granted the motion, the state then moved to continue to give the psychiatrist additional time for his review. Miller objected to the continuance, but the trial court overruled and re-scheduled the trial for January 2016, outside of the original 70-day speedy trial window.

After a bench trial, the Greene Circuit Court entered findings discrediting Miller’s expert witnesses and rejected his defense of mental disease or defect. The court then found that Miller, beyond a reasonable doubt, “did knowingly or intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn… .” Miller was convicted of Level 1 felony attempted murder and sentenced to 30 years, with 20 executed and 10 suspended to probation.

On appeal, Miller first argued that his rights under Indiana Criminal Rule 4(B) were violated when his trial was not held within the 70-day window. However, Judge Michael Barnes, writing for the Indiana Court of Appeals, said Friday that under Criminal Rule 4(D), the trial court was within its discretion to grant the continuance to give a psychiatrist more time to examine Miller.

The appellate panel also affirmed the trial court’s decision to reject Miller’s insanity defense, noting that one of the psychiatrists who testified on his behalf said that Miller was aware of the wrongfulness of his actions but could not resist the impulse to cut Kohn’s throat, a contradiction to other expert testimony that said he was not aware that his actions were wrong. Additionally, evidence of Miller’s demeanor during and after the attack supports the testimony that he understood the wrongfulness of the attack, Barnes said.

However, the appellate panel rejected the “knowing” mens rea used to convict Miller, specifically the trial court’s finding that he knowingly attempted to kill Kohn, the same language included in the charging information against him.

“Both the charging information and the trial court’s findings refer to the long-discredited notion that a ‘knowing’ mens rea was sufficient to convict Miller of attempted murder. It was not,” Barnes wrote. “Moreover, Miller’s intent was a central issue in this case.”

The case was, thus, remanded for a new trial applying the “specific intent to kill” mens rea, rather than a “knowing” mens rea.
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March 21

Juvenile – CHINS

In the Matter of: N.C. (Minor Child), Child in Need of Services and J.M. (Father) v. The Indiana Department of Child Services

53A01-1610-JC-2479

A trial court erred in declaring a boy in the custody of his father to be a child in need of services on account of his meth-abusing mother, the Indiana Court of Appeals ruled.

The appellate panel reversed and vacated the Monroe County CHINS adjudication. N.C.’s father, J.M., and mother are divorced. N.C. and mother’s other children were removed from her home after authorities learned she had been using methamphetamine in the presence of her children.

N.C.’s father had temporary custody and has petitioned the court for permanent custody, which the appeals panel noted is scheduled for hearing in June. But even as father’s counsel argued father showed no need for services and had cared for N.C. for months, the trial court determined he was a CHINS.

Judge Margret Robb wrote for the panel that subsequent events show the parties appear to have been dismissed from the CHINS action, potentially making this case moot. Nevertheless, she wrote, “(W)e conclude a decision on the merits is warranted and necessary. A CHINS adjudication, even one as short-lived as this one, can have serious consequences for families. Indiana Code section 31-35-2-4(b)(2)(B)(iii) provides that two separate CHINS adjudications can be the basis for a petition to terminate parental rights. Although N.C. is not currently a CHINS, it is still on record that he has been adjudicated a CHINS and if that adjudication was erroneous, it must be corrected to protect the integrity of the family going forward.”

The COA also found the court had failed to show proof of the three requirements of a CHINS adjudication — the parent’s action or inactions seriously endangered the child; the child’s needs are unmet; and those needs are likely to be unmet without the state’s intervention.

“(W)hatever neglect N.C. experienced due to Mother’s issues at the outset of this case was rectified by being placed in Father’s home,” Robb wrote. “… DCS is not relieved of its burden to prove by a preponderance of the evidence that the coercive intervention of the court was required.”
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March 22

Criminal – Enhanced Drug Conviction

Corey A. McAlpin v. State of Indiana

39A01-1606-CR-1417

A split Indiana Court of Appeals, divided over whether a park with no trees, no playground equipment and no benches could attract children during a school day, reversed a man’s conviction for Level 4 felony dealing in methamphetamine.

Corey A. McAlpin was arrested and charged after police officers found all the ingredients necessary to manufacture methamphetamine in his apartment. The charge was enhanced from a Level 5 felony to a Level 4 because the cooking occurred within 500 feet of a public park where a child under 18 years old was reasonably expected to be present. A jury found him guilty and McAlpin received a 10-year sentence.

On appeal, McAlpin argued the state failed to prove beyond a reasonable doubt that he manufactured meth while a youngster could have been in the park. The state countered that preschool-aged children, possibly brought by a parent wanting the toddler to burn some energy, could have been enjoying the public space.

However, the appellate panel noted with the change in Indiana’s criminal code, the Legislature limited the enhancement for committing a drug offense near a school or park. Specifically, the felony level may be increased if “a person under eighteen years of age is reasonably expected to be present.”

The majority agreed with McAlpin that expecting a child to be playing in a park with no swings or trees was not reasonable. It vacated his conviction and remanded for the trial court to enter judgment of conviction for Level 5 dealing in methamphetamine.

Judge Cale Bradford dissented, finding the evidence was sufficient to reasonably infer that children were likely to be present in the park.

“While the offense in question did take place on a school day, it was also a warm, sunny, summer day and the State provided many valid reasons why it was reasonably probable that children under the age of eighteen were present in the park at that time,” Bradford wrote. “Moreover, the jury was in a better position, after having heard and seen the evidence, to judge whether it is common to see children under the age of eighteen in Bicentennial Park on any given day.”
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March 23

Civil Tort – Premises Liability

Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation v. Richard Kaler

49A04-1604-CT-865

The Indiana Court of Appeals granted summary judgment in favor of the city of Indianapolis and Indy Parks and Recreation department after determining that the city was not liable for injuries sustained by a mountain biker as he was riding on a city-owned trail.

In July 2011, Richard Kaler and his girlfriend were riding a mountain bike trail at Town Run Trail Park, owned by the city of Indianapolis through the Indy Parks and Recreation, when Kaler rode over the low-grade portion of a berm, which required him to do “a little bunny hop” to get back on the trail. However, on his second time through the trail, when it was beginning to get dark outside, Kaler opted to ride over the high-grade portion of the berm, lost control and fell down a two-foot drop.

Kaler was diagnosed with lacerations to his spleen and kidney, yet refused physical therapy and participated in a 100-mile bike ride later that summer. However, in September 2012, Kaler filed a complaint against the city on the basis of premises liability.

In response, the city moved for summary judgment, which the Marion Superior Court denied. The city appealed, and the Indiana Court of Appeals reversed.

Drawing on precedent from the cases of Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991) and Pfenning v. Lineman, 947 N.E.2d 392(Ind. 2011), Judge Patricia Riley, writing for the appellate panel, said the designated evidence in Kaler’s case does not satisfy the three requirements laid out in Burrell with respect to the duty component of premises liability.

Specifically, Riley wrote that “it was objectively reasonable for the City … to expect Kaler to appreciate the risks of riding the trail and take suitable protections.” The difficulty of the trail was advertised as beginner through intermediate, and Kaler described himself as a “sophisticated” cyclist who enjoyed obstacles, such as berms, Riley said. Thus, it was objective and reasonable for the city to expect Kaler to recognize the trail’s risk and take appropriate precautions, the judge wrote.

Additionally, Kaler testified in a deposition that being involved in a bicycle crash was a general consequence of the sport, Riley wrote, so he cannot establish that the city had actual or constructive knowledge of a condition on the trail that posed unreasonable risk, another of the three Burrell factors.

Further, the appellate court held Kaler was contributorily negligent in his fall from the berm because he “knew and understood the precautions a reasonably prudent mountain biker should take – inspect the feature prior to riding it – but chose not to follow them.”
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March 27

Domestic Relation – Child Support

Mark H. Miller, II v. Leigh Anne Miller

49A02-1604-DR-817

An Indiana trial court did not err in finding a Marion County father is voluntarily underemployed, yet it failed to consider evidence of the father’s prevailing job opportunities or earnings level, the Indiana Court of Appeals found.

Mark and Leigh Anne Miller had four children together, and Leigh Anne Miller served as the primary caregiver for her children until 2009. When Mark Miller lost his job in 2010, he became the primary caregiver while also enrolling as a part-time college student.

When Leigh Anne Miller filed for divorce in 2014, Mark Miller was still a part-time student who worked 15 hours a week and shared living expenses with his girlfriend. When the dissolution decree was issued in 2016, the Marion Superior Court found that Mark Miller had been voluntarily underemployed since losing his job and imputed his income at the rate of $600 per week based on his prior earning level and voluntary underemployment.

Thus, Mark Miller was ordered to pay $97 per week in child support. After his motion to correct was denied, Miller appealed, challenging the finding that he is voluntarily underemployed.

Judge Terry Crone, writing for a panel of the Indiana Court of Appeals, said the trial court’s finding as to Mark Miller’s underemployment was not clearly erroneous, noting at the time of the final hearing he was a part-time student, but that he is no longer the children’s primary caretaker. Thus, a “reasonable inference can be drawn that the time Father spent in his caretaking function is now available for other purposes, yet he is only working fifteen hours a week,” Crone said.

However, the appellate panel did remand the case to the trial court on the issue of Mark Miller’s imputed income. While the trial court properly considered Miller’s work history and occupational qualifications, Crone wrote that there was no evidence in the record regarding prevailing job opportunities for Miller or earning levels in his community.

The COA’s instructions included the discretion to “reevaluate and adjust other determinations regarding child support in the dissolution decree” after the hearing.•