Opinions Sept. 6, 2022

Court of Appeals of Indiana
In Re the Paternity of E.P. (Minor Child) Stephanie A. Mercede Tonevich v. Kasey C. Perkins
22A-JP-57
Juvenile paternity. Reverses the Warrick Circuit Court’s award of joint legal custody of child E.P. to Stephanie Tonevich and Kasey Perkins. Finds the evidence supports the trial court’s findings, but its findings do not support the award of joint legal custody to the parents. Remands with instructions for the trial court to enter an award of sole legal custody to either Tonevich or Perkins. Judge Elizabeth Tavitas concurs with separate opinion.

J.L. v. M.M.
22A-PO-512
Protective order. Affirms and reverses in part the grant of an order for protection filed by mother M.M. for the protection of child Z.B.M.L. Finds the Allen Superior Court did not err by granting the order for protection. Also finds the trial court erred by prohibiting father J.L. from having any contact with Z.B.M.L. and denying J.L. parenting time for two years under the protection order. Remands for the trial court to allow some supervised contact and/or therapeutic parenting time between J.L. and Z.B.M.L. until this matter is addressed in the paternity action.

Samson Gershom and #1 Construction, Inc. v. Triple N LLC, and Dansheer Designs, LLC (mem. dec.)
21A-PL-2792
Civil plenary. Affirms the grant of partial summary judgment in favor of Triple N LLC and Dansheer Designs LLC on their complaint for compensatory and punitive damages against Samson Gershom and #1 Construction Inc. Finds the Marion Superior Court did not abuse its discretion in striking Paragraph 25 of Gershom’s affidavit, and any error in striking that paragraph would have been harmless. Also finds Jeremy Lee had apparent authority to execute the settlement statement on behalf of #1 Construction. Finally, finds no genuine issue of fact remains as to whether Triple N and Dansheer Designs still owed additional money to #1 Construction under their contract.

Circle City Weekly Rentals, LLC v. Metropolitan Board of Zoning Appeals Division 1 (mem. dec.)
22A-PL-954
Civil plenary. Affirms the order affirming the Metropolitan Board of Zoning Appeals’ denial of Circle City Weekly Rentals LLC’s petition for a zoning variance. Finds the BZA’s denial of Circle City’s petition for a zoning variance is supported by the evidence and is not arbitrary.

Shad Truelove v. Matthew “Cully” Kinnick, Justine Kinnick, Gerald Yarnell, II, and Jennifer Mapalad (mem. dec.)
21A-PL-2095
Civil plenary. Affirms the dismissal of Shad Truelove’s complaint for breach of contract against property owners Matthew Kinnick, Justine Kinnick and Jennifer Malapad regarding the sale of real estate. Finds the Martin Circuit Court properly denied Truelove’s motion to reconsider its grant of the motion to dismiss. Also finds the trial court did not abuse its discretion in denying Truelove’s request for leave to file an amended complaint. Finally, finds the trial court properly granted Yarnell’s motion for summary judgment, and it did not err in refusing to resolve discovery matters prior to granting summary judgment.

Help At Home, LLC v. John Doe I, John Doe II, and Jane Doe (mem. dec.)
22A-CT-784
Civil tort. Affirms the denial of Help At Home LLC’s motion to set aside the default judgment entered against it on a complaint for damages filed by John Doe I, John Doe II and Jane Doe. Finds HAH has not shown that the Madison Circuit Court erred when it ruled on its motion to set aside default judgment without a hearing. Also finds HAH has not shown that its failure to timely respond to the appellees’ complaint was due to mistake, surprise, excusable neglect or any reason justifying relief from the default judgment. Finally, finds the trial court did not err when it denied HAH’s motion.

Brandon Godsey v. Amanda Godsey (mem. dec.)
21A-DC-2502
Domestic relations with children. Affirms and reverses in part the decree of dissolution dissolving the marriage of Brandon and Amanda Godsey. Finds the Hamilton Circuit Court’s challenged findings are supported by the evidence. Also finds the trial court did not abuse its discretion by awarding Amanda sole legal and physical custody of child M.G., granting her relocation request and dividing the marital estate. Finally, finds the trial court erred in its calculation of the reimbursement Amanda had to pay Brandon, and the evidence does not support its approach to calculating Brandon’s gross income. Remands to the trial court with instructions to recalculate the reimbursement amount Amanda is required to pay Brandon and Brandon’s child support obligation using the gross income data that was presented to the trial court.

Daniel L. Fisher v. State of Indiana (mem. dec.)
22A-CR-494
Criminal. Affirms the denial of Daniel L. Fisher’s motion to withdraw his guilty plea to dealing in methamphetamine as a Level 2 felony and to being a habitual offender. Finds Fisher has failed to establish that the withdrawal of his plea was necessary to correct a manifest injustice, and he has not overcome the Delaware Circuit Court’s presumptively valid decision to deny his motion.

Jade M. Cook, II v. State of Indiana (mem. dec.)
21A-CR-2898
Criminal. Affirms the denial of Jade Cook’s motion to correct erroneous sentence seeking credit time. Finds the trial court did not abuse its discretion when it denied Cook’s motion because his sentence was not facially erroneous.

Tiffany McNutt v. State of Indiana (mem. dec.)
21A-CR-2578
Criminal. Affirms Tiffany McNutt’s convictions of neglect of a dependent resulting in death as a Level 1 felony and neglect of a dependent as a Level 6 felony, and her sentence to an aggregate of 20 years, with 10 years executed and 10 years served in home detention. Finds the state presented sufficient evidence beyond a reasonable doubt to convict McNutt of Level 1 felony neglect of a dependent resulting in death. Also finds her sentence is not inappropriate in light of the nature of the offenses and her character.

Sean Nigel Hindman v. State of Indiana (mem. dec.)
21A-CR-2624
Criminal. Affirms the revocation of Sean Nigel Hindman’s home detention under Cause No. 48C04-1509-F4-1468 and his sentence suspended to probation under Cause No. 48C04-1910-F6-2478. Finds Hindman’s Sixth Amendment right to counsel of his choosing was not asserted in a timely manner and, thus, was not violated by the Madison Circuit Court’s denial of his motion for a continuance to hire new counsel on the morning of the evidentiary hearing. Also finds the trial court did not err in its execution of all remaining time on Hindman’s consecutive sentences in light of Hindman’s repeated violations of probation and other forms of conditional release.

Natisha Lax v. State of Indiana (mem. dec.)
22A-CR-809
Criminal. Affirms Natisha V. Lax’s conviction of operating a motor vehicle while intoxicated endangering a person as a Class A misdemeanor. Finds the state presented sufficient evidence beyond a reasonable doubt to support Lax’s conviction.

Christapher French v. State of Indiana (mem. dec.)
22A-CR-510
Criminal. Affirms Christapher French’s sentence to 12 years, with 10 years to serve and two years suspended to probation, for Level 4 felony sexual misconduct with a minor. Finds French’s sentence is not inappropriate.

David Davis v. Darrell Ghere (mem. dec.)
22A-EV-634
Eviction. Affirms the Brown Circuit Court’s order of eviction and money judgment against David Davis. Finds the trial court’s decision rested upon substantial evidence.

Warren Parks v. Amber Cooper (mem. dec.)
22A-MI-1009
Miscellaneous. Dismisses Warren Parks’ appeal of his order for counterclaim. Finds the Putnam Circuit Court’s April 20, 2022, order denying Parks’ counterclaim was not a final judgment under Indiana Appellate Rule 2(H) because it did not dispose of all claims as to all parties. Also finds the order does not fall under any of the categories of interlocutory orders appealable as of right under Appellate Rule 14(A), and there is no indication that Parks followed the process set forth in Appellate Rule 14(B) for discretionary interlocutory appeals.

Tommy Townsend v. State of Indiana (mem. dec.)
21A-PC-2285
Post-conviction. Affirms the denial of Tommy Townsend’s petition for post-conviction relief. Finds trial counsel was not ineffective for failing to request a blood test to investigate Townsend’s toxicology and to employ a toxicologist to testify that psychosis could result after taking the recommended doses of the medicines at issue; for failing to make a pretrial request for notice of the prior conviction evidence and failing to object to inadmissible propensity evidence under Indiana Evidence Rule 404(b); or by failing to present evidence that undermined the burglary charge.