Indiana Court Decisions: Oct. 19-Nov. 1, 2023

7th Circuit Court of Appeals

Oct. 24

Shellie Ellison v. United States Postal Service

22-1967

‘It’s 2023, for heaven’s sake’: 7th Circuit orders district court to consider reasonableness of wheelchair ramp at Shelbyville Post Office

A woman in a wheelchair fighting for a ramp to be built at her local post office will be able to make her argument in court after the 7th Circuit Court of Appeals vacated summary judgment for the United States Postal Service, which so far has refused to build the ramp. One concurring judge even accused USPS of discrimination.

The case involves Shellie Ellison, a woman with a disability that requires her to use a wheelchair.

The closest and largest post office to her home is the Shelbyville Post Office.

Ellison keeps a P.O. box at the Shelbyville location for her nonprofit, Wheels on the Ground, which focuses on educating the public about accessibility for people with disabilities. However, the Shelbyville location does not have a wheelchair ramp, and USPS refuses to build one.

Ellison thus sued the Postal Service under Section 504 of the Rehabilitation Act of 1973, seeking an injunction.

But the U.S. District Court for the Southern District of Indiana entered summary judgment for the Postal Service, finding it didn’t need to install a ramp because Ellison could access its services through its website. The court also noted there were three wheelchair-accessible locations within 15 minutes of her home.

Ellison’s motion for summary judgment was denied.

The case then went to the 7th Circuit, where Ellison argued the district court erred because the record shows she lacks meaningful access to the Postal Service’s program through alternative methods.

The appellate court noted there are three potential accommodations available to Ellison: asking for help at the post office’s loading dock or a van-accessible parking spot, using the Postal Service’s website, or visiting wheelchair-accessible locations in surrounding towns.

Finding those alternatives do not give Ellison meaningful access to her local post office, the 7th Circuit vacated summary judgment for USPS.

Writing for the appellate court, Judge Doris Pryor first addressed the option of asking for help from the loading dock or a van-accessible parking spot.

For a while, Pryor said, the Postal Service had directed Ellison to the loading dock, and from there she would make her way up a ramp and push the call button. Sometimes an employee would respond, and if they did, they would not let her in through the back door. Instead, Ellison had to wait outside on the loading dock while the employee would travel back and forth to carry out her requests.

Ellison eventually became frustrated with the setup and complained to the United States Access Board, which decided that because of the age of the Shelbyville Post Office, it could not require the United States Postal Service to alter the front entrance by building a ramp.

Instead, the Postal Service spent $60,000 to renovate the area around the loading dock. That allowed for a van-accessible parking space, a call button in that space and a less steep loading ramp.

However, delivery trucks often blocked the parking space, leaving Ellison outside waiting for an employee to help her.

The Postal Service offered to deliver the mail from her P.O. box to her home, but she explained that she preferred to keep the mail delivered to her P.O. box separate from her personal mail so that executives in her nonprofit could easily collect documents they needed.

Ellison was not the only one dissatisfied with the means of accessing the Postal Service’s program.

After many complaints, the city of Shelbyville offered to pay for a ramp at the Shelbyville Post Office’s front entrance. But the Postal Service declined, citing a policy of refusing donations for exterior physical improvements.

Turning to the potential accommodation of using the USPS website, Pryor noted ground shipping, which is the cheapest option, is not available online. Also, shipping materials can take over a week to arrive, some products come with delivery fees, and customers cannot receive hands-on assistance online.

Finally as to the option of visiting another post office, Pryor noted the closest accessible locations are about 15 minutes away from Ellison’s home, compared to her seven-minute drive to the Shelbyville location.

Ellison now visits a wheelchair-accessible private shipping company, where she pays three times as much for the same services offered by the Postal Service.

“A reasonable jury looking at this record — which shows why the Shelbyville Post Office and website were insufficient yet contains no information about the services provided at the alternative post offices — would have to conclude that Ellison lacked meaningful access to the Postal Service’s program,” Pryor wrote. “The only way a jury could find for the Postal Service on this question would be by impermissibly speculating about what lies inside the wheelchair-accessible post offices. … Ellison therefore showed that without an accommodation she lacks meaningful access to the Postal Service’s program.”

The 7th Circuit remanded the case for the district court to consider whether Ellison’s proposed accommodation — a wheelchair-accessible ramp — is reasonable.

In a separate concurrence, Senior Judge David Hamilton expressed frustration with the USPS argument.

“It’s 2023, for heaven’s sake,” Hamilton wrote. “The Rehabilitation Act was enacted 49 years ago. The Americans with Disabilities Act was enacted more than 30 years ago. One would be hard pressed to find any institution other than the Postal Service that would even dare make the arguments the defense has made in this case.”

Hamilton said he would go further and reject on broader grounds the Postal Service’s theory that it had “accommodated” Ellison by sending her to other post offices in other towns.

He also noted that the Postal Service said it had estimated the cost of a ramp but never disclosed that amount to Ellison or the court.

“Whether that privilege claim is valid or not, the Postal Service simply has not offered evidence that a ramp would be unreasonable,” he wrote. “We could just as well order summary judgment in favor of plaintiff on this point rather than order further proceedings on remand.

“Third, at the risk of stating the obvious, the proposed ramp will benefit not just plaintiff Ellison, but thousands of other residents of Shelby County who would like to use the Shelbyville Post Office but cannot cope with its inaccessible entrance,” he continued. “These broader benefits need to be part of any calculation of reasonableness.

“… In 2023, the refusal to make a post office wheelchair-accessible should be deemed ‘discrimination’ under the Rehabilitation Act without further ado.”

The case is Shellie Ellison v. United States Postal Service, 22-1967.

Indiana Supreme Court

Oct. 31

State of Indiana v. $2,435 in United States Currency and Alucious Q. Kizer

23S-CR-72

IN justices: Civil forfeiture defendants have constitutional right to jury trial

Defendants to civil forfeiture actions have a constitutional right to trial by jury in Indiana, the state Supreme Court has ruled.

Justice Christopher Goff wrote the unanimous opinion in State of Indiana v. $2,435 in United States Currency and Alucious Q. Kizer, 23S-CR-72.

The defendant, Alucious Kizer, was running from police when he discarded a “veritable pharmacy of controlled substances,” including methamphetamine, fentanyl, cocaine, crack cocaine and synthetic cannabis. Officers also later recovered $2,435 in cash, which became subject to a civil forfeiture complaint.

Kizer requested a jury trial on the forfeiture issue, but the state moved to strike, claiming neither the state nor federal constitutions provide a right to trial in forfeiture cases.

The Allen Circuit Court initially granted the state’s motion but then vacated its order, noting guidance that trial courts should err “on the side of awarding Defendants more rights and due process by honoring the right to jury trial in civil forfeiture cases, if timely requested.”

The Court of Appeals of Indiana reversed on interlocutory appeal, concluding “a complaint by the State for the forfeiture of illegal property is ‘not a civil case under the common law when the Constitution was adopted … .’”

But on transfer to the Supreme Court, the justices affirmed the trial court, finding the jury trial right applies to an action to confiscate money under the state’s civil forfeiture statute.

Focusing on Article 1, Section 20 of the Indiana Constitution — which guarantees the right to a jury trial in civil cases — the justices adapted a formula put forward by retired Justice Theodore Boehm in Midwest Security Life Insurance Co. v. Stroup, 730 N.E.2d 163 (Ind. 2000): “Parties in a civil case have a right to trial by jury in a cause of action (1) that was triable by the jury at the adoption of the current constitution in 1851; or (2) if no such cause existed at the time, one that is essentially legal, rather than equitable, as those terms were understood in 1851, considering ‘the complaint, the rights and interests involved, and the relief demanded.’”

Applying that framework, the justices concluded Article 1, Section 20 does protect the right to a jury trial for in rem civil forfeitures.

“… (T)he historical record — consisting of statutes and judicial decisions reflecting contemporary practice — strongly suggests that Indiana continued the common-law tradition of trial by jury in actions for the forfeiture of property,” Goff wrote.

However, “While the historical record strongly suggests that Indiana continued the common-law tradition of jury trials for in rem forfeitures, we acknowledged that the evidence is largely circumstantial,” he continued.

“But, even if no cause of action existed in 1851,” Goff wrote, “we have little trouble concluding that the forfeiture here is not, as the State contends, akin to the equitable disgorgement of illegally obtained profits.” That’s because of who gets the proceeds of forfeited money, the in rem theory of civil forfeiture, and the “general rule” that “a court of equity will not interfere to give relief against a statutory forfeiture.”

“… In sum, we conclude that the present action for in rem forfeiture of money as the instrument and proceeds of crime is readily analogous to the traditional common-law forfeiture of property used in violation of the law — not to equitable disgorgement,” the court concluded. “And, in keeping with Indiana’s constitutional guarantee, this is an essentially legal action that triggers the right to trial by jury.”

The case was remanded for a jury trial on the forfeiture action against Kizer.

Court of Appeals of Indiana

Oct. 26

Jason Dane Brown v. State of Indiana

22A-CR-01241

Man loses appeal of murder conviction in shooting death of Southport Police Lt. Allan

The man convicted of killing Southport Police Lt. Aaron Allan has lost his arguments on appeal that due process violations and insufficient evidence undercut his murder conviction.

The defendant, Jason Brown, was convicted in 2022 of the murder of Allan and was sentenced to 55 years in prison.

The shooting happened in July 2017, when Brown drove his vehicle into a curb, causing it to roll over. Brown was hanging upside.

Allan was one of the responding officers who arrived to help Brown. But Brown yelled profanities at Allan before fatally shooting him.

An Indianapolis Metropolitan Police Department investigation of Brown’s vehicle found 18 spent bullet cartridges along with a 9 mm handgun. IMPD also found a baggie believed to contain marijuana as well as a scale.

But police did not request a blood sample at the time of his initial investigation because “[t]here was no information that would warrant us getting a blood draw at that time.” However, after consulting with the Marion County Prosecutor’s Office, “the decision was made to try to obtain a blood sample” from Brown on the day of the crime.

A detective attempted to obtain the blood sample that had been taken from Brown at Eskenazi Hospital shortly after the crime. A representative of Eskenazi indicated the blood sample had been destroyed, but Brown’s urine sample, which was collected at about the same time, was still available.

Brown’s urine sample tested positive for THC, cocaine, two different types of “spice,” a synthetic cannabinoid, and hydromorphone, which was likely present because of the opioid pain medication Brown was given in the hospital.

After he was charged, Brown moved to exclude the results of the toxicology report, arguing results from a urinalysis are not relevant under Indiana Evidence Rule 401 “because impairment or intoxication cannot be inferred from the results of a urine screen.”

Meanwhile, Brown also agreed to a bench trial in exchange for the state dropping the death penalty.

In January 2022, the Marion Superior Court denied Brown’s motion to exclude the toxicology results before proceeding to trial.

Brown subsequently appealed his murder conviction, arguing that the state violated his right to due process when it failed to secure his blood sample taken shortly after the incident because such evidence may have been exculpatory.

He also argued that the trial court abused its discretion when it admitted his urinalysis results into evidence, and that the state had not presented sufficient evidence that he knowingly killed Allan.

The Court of Appeals affirmed, with Judge Melissa May writing.

According to May, the appellate court did not need to consider the exculpatory nature of the blood sample or whether the state acted in bad faith by not preserving it because the state never possessed the blood sample. She cited Glasscock v. State, 576 N.E.2d 600 (Ind. Ct. App. 1991).

“Like in Glasscock, the State never possessed the blood samples and, therefore, cannot be held responsible for the destruction of Brown’s blood samples,” May wrote. “Brown has not demonstrated a violation of his right to due process.”

As for the admission of the urinalysis results, May wrote that because the results could not pinpoint a time of usage, the evidence bore only slight relevance to the issue of whether Brown was intoxicated at the time of the crime.

“Here, any error in the admission of the urinalysis was harmless because there existed substantial independent evidence to support Brown’s conviction,” May wrote, noting “the trial court’s pronouncement of guilt suggested it did not rely on the toxicology report and instead rejected the State’s theory that Brown was intoxicated.”

Further, the trial court addressed — and rejected — the evidence provided by Brown as to his theory of defense, and that rejection was supported by substantial evidence in the record, with Brown able to answer questions posed by Allan prior to the shooting and Brown providing the officer with his driver’s license when requested.

Additionally, Brown shouted, attempting to locate his gun, while Allan was in the vehicle rendering aid.

Brown also shot his gun until it was empty, firing a total of 18 shots, 10 of which hit Allan.

“Finally, the State’s expert, Dr. (Troy) Payner, testified that, in his opinion, Brown’s behavior was not consistent with someone suffering a seizure and the CT scan taken of Brown shortly after the accident did not indicate the head trauma Brown claimed to have suffered prior to the car accident,” May wrote. “Brown’s reliance on his expert, Dr. Sheila Arnold, and his alternative interpretation of the evidence is an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do.”

Judges Leanna Weissmann and Peter Foley concurred in Jason Dane Brown v. State of Indiana, 22A-CR-01241.

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Oct. 30

Jennifer L. Dean v. State of Indiana

22A-CR-2104

Trial court’s improper remark on reasonable doubt standard not enough to overturn murder conviction, COA affirms

A trial court’s remark endorsing “80% certainty” as a description of the reasonable doubt standard was improper but did not rise to the level of fundamental error for a woman convicted of murder in a fatal robbery, the Court of Appeals of Indiana ruled in affirming the woman’s conviction and 60-year prison sentence.

In June 2021, Tyrone Leftridge, Shianne Brooks-Brown and her daughter were living with appellant-defendant Jennifer Dean in Flora.

Brooks-Brown has known Dean since she was 3 years old and referred to her as “mom.” She also has a learning disability, struggles with remembering things and has an 11th grade education.

For a two-year period when Brooks-Brown previously lived with Dean, Dean would either coordinate or assist in Brooks-Brown’s participation in prostitution on a weekly basis.

Leftridge, Brooks-Brown and Dean proposed a plan to use Brooks-Brown’s profile on the MeetMe dating app to lure an individual with the prospect of exchanging $120 for sex.

There was conflicting evidence regarding whether the original plan was for Brooks-Brown to engage in prostitution or for Leftridge and Brooks-Brown to rob the individual.

Dean originally suggested a trailer park as a location for the meeting, but it later changed to a nearby alley.

Dean was to receive $20 for watching Brooks-Brown’s daughter while she and Leftridge met the individual. Dean also provided Leftridge with a bandana, and either Brooks-Brown or Leftridge with a small baseball bat.

Willie Smith Jr. responded to the solicitation and met Brooks-Brown in the alley sometime between 1 and 3 a.m. Leftridge hid behind a nearby detached garage.

Brooks-Brown didn’t have sex with Smith, and at some point, he got out of the car and pulled out a pocketknife. Either Brooks-Brown or Leftridge hit Smith on the head with the bat. Smith fell to the ground, where he was struck several more times.

Brooks-Brown and Leftridge returned to Dean’s house with the bat, $120, and Smith’s cellphone and wallet. Brooks-Brown told Dean to contact the police because a man was hurt, but she refused. Instead, she told Leftridge to “get rid of the evidence” and “bleach the bat.”

Smith left the alley and entered a nearby house, where the owners discovered him lying on their couch and contacted the police.

Flora Police Department Chief James Bishop responded and noted Smith had “substantial trauma” to his face and only moaned when spoken to. Smith later died from his injuries.

Bishop was familiar with Dean, so he visited her house and showed her the photo of Smith and asked if she knew him. Dean denied that she did.

Law enforcement later found Smith’s car with a receipt for an ATM withdrawal of $120 from 1:05 a.m. that morning.

They also found surveillance camera footage from 2:39 a.m. of Leftridge dressed in all black leaving Dean’s house with a bag and then returning without the bag. The footage also showed Leftridge leaving the house in different clothing.

Leftridge and Brooks-Brown were stopped by law enforcement as they were packing up a car in front of Dean’s house.The officers recognized Leftridge from the surveillance footage and saw $100 in $20 bills in the cubby of the door by him.

The officers determined they had probable cause to arrest him and brought him to Carroll County Jail.

While Leftridge was in jail, he spoke on the phone and exchanged text messages with K.C., who is the mother of his daughter. He told her that he was an accomplice of robbery and that the truth was going to come out.

During the investigation, law enforcement discovered that Brooks-Brown had two cellphones and that there was a gap of information missing on one of her phones. Two days after the robbery, Dean reported that she found a wallet in her living room, but she didn’t know who it belonged to.

Dean and Brooks-Brown changed their stories several times while speaking with law enforcement. Both were eventually arrested.

Dean, specifically, was charged with one count of felony murder and one count of felony conspiracy to commit robbery resulting in serious bodily injury.

While the two women were in jail, Dean encouraged Brooks-Brown to change her story so she could get out.Dean also wrote Brooks-Brown a letter saying Dean was asked to watch Brooks-Brown’s daughter while she and Leftridge “finesse someone — that don’t mean to hurt anyone.”

A jury trial was held in April 2022.

During voir dire, the Carroll Circuit Court instructed prospective jurors on the reasonable doubt standard.

One prospective juror, when asked how powerful the proof needs to be, said a 16 on a scale of one to 20.

The court said, “It’s perfect, 80 percent. I mean, he nailed it.”

Neither Dean nor the state objected to the court’s remark and that prospective juror was not selected.

During the jury trial, Leftridge and Brooks-Brown testified.

The jury found Dean guilty, and the trial court entered judgment of conviction on the felony murder count. The count of felony conspiracy to commit robbery resulting in serious bodily injury was dismissed due to double jeopardy concerns.

The trial court found Dean’s criminal history to be an aggravating factor, but found no mitigators. She was sentenced to 60 years in the Indiana Department of Correction.

Dean appealed her conviction and sentence.

The Court of Appeals affirmed the trial court’s decision, finding that it could not say that the trial court’s remark on the reasonable doubt standard during voir dire constituted fundamental error, and also finding Dean’s remaining arguments without merit.

The first issue the appellate court addressed was whether the trial court committed fundamental error by endorsing 80% certainty as a description of the reasonable doubt standard.

“By endorsing eighty-percent certainty as a description of the reasonable doubt standard here, the trial court misinformed the jury on one of the most critical protections our Constitution provides for the criminally accused. We, thus, caution our trial courts to avoid attempting to quantify the reasonable doubt standard — period,” Judge Elizabeth Tavitas wrote. “The trial court’s remark, however, does not automatically require reversal.

“… At all other points, the trial court properly instructed the jury on the reasonable doubt standard, including at the most critical juncture — immediately before deliberation,” Tavitas wrote. “… The trial court should not have attempted to quantify the reasonable doubt standard; however, in the context of the entire trial, we cannot say that the trial court’s remark rises to the level of fundamental error.”

The second issue that was brought to the court was whether the state presented sufficient evidence to support Dean’s conviction of felony murder.

The court found the evidence to be sufficient and affirmed the conviction.

“Here, the State presented evidence that Dean helped plan the robbery, identified a location in which to commit the robbery, provided the bat and bandana, helped cover up the evidence, lied to police, and encouraged Shianne to lie as well,” Tavitas wrote. “We find this evidence sufficient to support a finding that Dean was an accomplice to the robbery.”

Further, “Dean provided Tyrone and Shianne with the bat and bandana,” the judge continued. “It was reasonably foreseeable that the bat could be used in a violent manner, and in fact, it was.

Accordingly, the felony murder doctrine is applicable, and the State presented sufficient evidence to support Dean’s conviction.”

Lastly, the appellate court addressed whether Dean’s sentence is inappropriate.

Dean compared her 60-year sentence to Leftridge’s 45-year sentence. However, the court pointed out that Leftridge pleaded guilty and she did not.

“It is true that Tyrone might have ‘struck the fatal blows’ that killed Willie,” Tavitas wrote. “That, however, does not diminish Dean’s role in the conspiracy, which included planning the robbery, providing the murder weapon, and covering up the evidence. Not all co-conspirators are entitled to the same sentence, and in fact, we trust our trial courts to carefully consider the unique set of aggravating and mitigating factors in each case.”

Judges Melissa May and Cale Bradford concurred in Jennifer L. Dean v. State of Indiana, 22A-CR-2104.

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James A. Cassity v. State of Indiana

23A-CR-209

COA reverses drug convictions because arresting officer wasn’t in ‘distinctive’ uniform

The Court of Appeals of Indiana has ordered the reversal of a man’s drug-related convictions after determining that the officer who arrested him was not wearing a “distinctive” uniform, making the underlying traffic stop invalid.

The case — James A. Cassity v. State of Indiana, 23A-CR-209 — began in January 2020, when Elkhart City Police Department officer Justin Gage, who was in an unmarked car, was surveilling hotels for drug activity. During his surveillance, Gage twice saw James Cassity fail to signal while turning.

Gage thus initiated a traffic stop. At the time, he was wearing a sweatshirt and jeans, a vest with the word “POLICE,” and a badge on the shoulder area of the vest.

As Gage approached Cassity’s car from the passenger side, he saw a woman, later identified as Nicole Doty, frantically placing something behind the center console. Cassity and Doty also were acting nervously, and Doty was shaking and reaching under her left thigh.

Gage saw a baggy with what he believed to be methamphetamine in the front passenger seat when Doty exited the car. He also saw Cassity glance behind the center console as he exited the car.

Meanwhile, another member of the Elkhart Police, officer Gruber, arrived wearing clothing similar to Gage’s, including a “POLICE” vest.

Gage and Gruber handcuffed both Cassity and Doty after they exited the car.

Two officers driving marked police cars arrived while Gage searched Cassity’s car for drugs. He found a zipped bag behind the center console containing meth, as well as a baggy of meth and a pipe containing burnt residue on Cassity.

The state charged Cassity with Level 6 felony possession of meth and Class A misdemeanor possession of paraphernalia.

He moved to suppress the meth and paraphernalia found during the traffic stop, arguing Gage did not have the authority to stop him under the Police Uniform Statute because he was in an unmarked car and was not in a “distinctive” police uniform. He cited Davis v. State, 858 N.E.2d 168 (Ind. Ct. App. 2006).

But the Elkhart Superior Court denied the motion to suppress, finding Gage’s attire was distinctive enough to show he was a police officer. At trial, the court noted Cassity’s ongoing objection to Gage’s authority to conduct the stop.

The jury found Cassity guilty as charged, and he was sentenced to an aggregate of two years.

But in overturning his convictions, the Court of Appeals agreed with Cassity that Gage’s attire was not sufficiently distinctive.

“Gage’s vest did not transform his civilian clothes into a ‘distinctive uniform,’” Judge Rudolph Pyle wrote. “This is certainly true in the context of an officer driving an unmarked car at night and wearing civilian clothing, including a sweatshirt and jeans, beneath the vest. Further, none of the accoutrements affixed to Officer Gage’s vest clearly identified him as an Elkhart police officer except his badge, which is a separate requirement of the Police Uniform Statute. See I.C. § 9-30-2-2(a)(1).”

The COA found Cassity’s case to be similar to Davis, holding, “As we did in Davis, we again hold that a black vest with the word police written across it, worn over civilian clothes, does not satisfy the distinctive uniform requirement of the Police Uniform Statute.”

“Accordingly,” Pyle concluded, “we hold that the vest worn by Officer Gage does not satisfy the ‘distinctive uniform’ requirement of the Police Uniform Statute. As a result, the trial court abused its discretion when it admitted the methamphetamine and paraphernalia obtained as a result of this invalid traffic stop.”

Judges Nancy Vaidik and Paul Mathias concurred.

__________

Oct. 31

Mark A. Wilson v. Teresa C. Wilson

23A-DC-1384

Disabled daughter’s disability benefits can’t be used to offset father’s child support obligation, COA affirms

Addressing a child support dispute for the second time on appeal, the Court of Appeals of Indiana has rejected a father’s argument that his disabled daughter’s disability benefits should be used to offset his child support obligation.

The case — Mark A. Wilson v. Teresa C. Wilson, 23A-DC-1384 — first came before the Court of Appeals earlier this year, when the appellate court remanded the child support question.

At issue is the child support obligation imposed on Mark Wilson, the ex-husband of Teresa Wilson and the father of Emily, their adult daughter who is disabled.

During the couple’s divorce proceedings, Teresa had submitted a proposed child support worksheet recommending that Mark pay $262 per week in child support. The Hendricks Superior Court adopted that worksheet in its dissolution decree, but the Court of Appeals remanded “for the trial court to determine and make findings as to whether E.’s overall financial needs are satisfied in whole or in part by the Social Security benefit she receives and for entry of Father’s support obligation which, if appropriate, includes an adjustment for the income E. receives in Social Security benefits.”

On remand, the trial court noted that if a 16-year-old child earns money from working a job, that money would not be included in calculating support because the child would still not be capable of supporting themselves.

Likewise as to Emily, who receives $840 a month in Social Security Disability Insurance, the court found that she will never arrive at the juncture of being able to take care of herself without the support of her parents. Thus, the trial court reimposed the $262 monthly child support payment.

Mark challenged that order on appeal for the second time, arguing his child support obligation should have been offset by Emily’s Social Security benefits. But this time, the Court of Appeals affirmed.

“Father’s position that the trial court should have offset his support obligation by the full amount of Emily’s SSD benefits is not supported by the Guidelines, analogous caselaw, or common sense,” Chief Judge Robert Altice wrote. “And his claim that Emily’s financial needs are fully covered by her SSD benefits is pure folly and ignores the reality that, at the time of the final hearing, Mother and Emily remained financially unable to move out of Mother’s parents’ home.”

The appellate court looked to Lea v. Lea, 691 N.E.2d 1214 (Ind. 1998), where the Supreme Court rejected a noncustodial father’s argument that his support obligation should be reduced based on his incapacitated daughter’s weekly income from a part-time job.

Following Lea, commentary was added to the Child Support Guidelines saying an incapacitated adult child’s earned income may — but not must — be considered.

“This commentary reflects the broad discretion afforded trial courts in these matters,” Altice wrote. “That is, a trial court may consider the earned income of an incapacitated adult child when apportioning support, but such is not required. We believe this same flexibility should be afforded a trial court when considering the effect, if any, that an incapacitated adult child’s SSD benefits should have in the calculation of a particular support obligation.”

Finally, in a footnote, Altice added, “We note that Father does not make the more tenable claim that the trial court should have determined the support obligation by apportioning support based on the relative amounts earned by Father, Mother, and Emily — the methodology used by the trial court in Lea. By our own calculations, such would have resulted in a reduction of his support obligation of about $40 per week, much lower than the full credit he sought.

“Regardless,” Altice wrote, “Father did not present the trial court with a proposed child support worksheet with such calculations.”•