WHEN SHOULD YOU FILE AN INDIANA APPEAL

Picture this.

You're involved in litigation. You've hired a lawyer and paid the lawyer a fair amount of money. You've had evidence gathered. You called witnesses.

You've had a contentious and sometimes bitter struggle with the opposing party. The other lawyer has gotten on your last nerve.

But you've had your day in court. You have worked with your lawyer and spent a fair amount of time and money to build and present the case that you and your lawyer believe will seal the deal. All of your emotions and quite possibly a certain direction of your future life has been invested in that hearing.

And the Court finally issued its order.

And the order is nothing like you expected.

What do you do when the court - in your opinion - got it wrong?

One solution is to file a Notice of Appeal. This begins the process by which the court of appeals will review the trial court's order and to a certain extent, the decision making process, and determine if the order that was issued is in compliance with Indiana law. An appeal is not a new trial. It is not a request for the court of appeals to reweigh the evidence and come to a different conclusion. It is a request for the Court of Appeals to review and determine that the trial court made a decision that is supported by the evidence and in compliance with Indiana law.

This article is not a primer on appellate procedure.
You should review that with an experienced appellate attorney. The decision to file an appeal on any particular order is something that should be carefully considered by you both in terms of cost and likelihood of success. You should also be aware that the Notice of Appeal of a final dispositive order must be filed within 30 days of the entry of the order on the chronological case summary, so there is a definite and non-extendable deadline to decide whether or not to file an appeal.  An appeal during litigation but prior to a final order is called an interlocutory appeal and has unique and specific criteria and deadlines for filing.

The appeal itself is a number of issues asked as questions to the Court of Appeals to review and answer. The appeal brief consists of the research and evidence from the trial to support your particular answer to these questions and possibly an appendix of the evidence presented at trial. The other side (or other sides, if there are more than 2 parties to the appeal) has the opportunity to respond to your argument. The Court of Appeals will consider both side’s arguments as well as their own review and research of Indiana law to issue their opinion.

You do not have to be concerned that you are creating new law or interpreting a statute or a prior case in a unique and novel way.
Sometimes the request in the appeal is to interpret a law in a new way or to ask that a law be interpreted according to new societal norms. This is rare in Indiana, as the Court of Appeals has a great deference to the authority of the legislature to create and change existing law. However, it is not unheard of for the Court of Appeals or the Supreme Court to issue an opinion with a an interpretation of existing case law or interpretation of the statue that is in line with more current thinking.

If your gut tells you that the order you received is not correct, then it is certainly worth the time to review that order with an attorney for the purpose of filing an appeal.
There are other pleadings in the nature of an appeal that may be more appropriate. For example, a Motion to Correct Errors or a Petition for Relief from Judgment.  Be aware that this review must occur within 30 days of the final order being entered on the chronological case summary. The Petition for Relief from Judgment has longer deadlines depending on the relief you are requesting. Interlocutory appeals (appeals during litigation) have their own deadlines and they do have unique criteria that must be met before the interlocutory appeal can be filed.
Use our CONTACT page to schedule a strategic review of an Order so you can consider filing an  appeal or other pleading.  Please be sure to include the DATE of the Order in the information being sent, so the consultation can be timely scheduled.

THE EVOLUTION OF INDIANA SAME SEX DIVORCE

Indiana family law changed forever when the ban on same-sex marriage was overturned recently. This affects not only the right to marry, but also all aspects of Indiana family law. It directly affects same sex divorce which affects custody and parenting time issues as well as the financial division. It can be presumed that there will be ripple effects on determination of same sex custody and parenting time under paternity actions.

Indiana is actually quite well prepared to assimilate and accommodate these changes. Indiana case law and statutes have been increasingly focused on the best interests of the children and increasingly moving away from traditional household sex-based roles and parental roles.

Here are three reasons why Indiana is well prepared for same-sex divorce:
​1.   Emphasis on best interests of the children. By looking at the best interests of the children and their relationships with the parents, courts are less reliant on traditional parental roles. The advent of same-sex marriage carries with it the potential of real analysis of parental roles and household roles. Indiana's movement over the past few years toward a child focused analysis diminishes the anticipated effects of the same-sex marriage ruling.
2.   Less reliance on traditional parental roles. Recent decisions by the Indiana Court of Appeals and Supreme Court rarely mention the “fatherly role” or “motherly role” in the upbringing of children. They discuss the children's relationship with each parent. There is little to no analysis of a father’s traditional role or a mother’s traditional role now.  Courts are increasingly looking at how this parent interacted with the children in this family. Indiana's continuing evolution therefore seems well suited to the new same-sex marriage landscape.
3.   Less reliance on traditional household roles. In the division of the marital estate as well as analysis of spousal maintenance, the Indiana courts do not presume that the husband is the breadwinner or that the wife is the homemaker. While courts may from time to time reference a spouse’s role as breadwinner or homemaker, it is within a discussion of the reality of that individual household not due to that spouse’s sex or gender. Maintenance analysis is strictly limited to the presence of an incapacity or the need for additional support to re-enter the workforce, with no distinction or presumption concerning a spouse’s gender.

Indiana’s courts therefore seem well placed to analyze the custody and financial issues of a divorce for a divorcing same sex couple.  While this change is still new and untested under Indiana law, there should not be significant differences on the custody and parenting time analysis for same-sex paternity cases.

Given this new and evolving landscape you are best served by a law firm or lawyer who is adaptable and not cemented to advocating only what will soon be archaic sex or family roles. This does not mean that these new changes will occur overnight.  But sooner rather than later, the changes on the horizon will be in your courtroom and affecting your case. 

Carter Legal Services LLC is well placed for this new landscape. I have practiced family law in multiple states for over 20 years.  I have not only seen and participated in this evolution but also can bring in the multiple points of view from the various states in which I have practiced, as well as keeping current on legal trends through numerous Indiana appeals. In addition my experience as a systems programmer allows me to develop a strategic plan for your situation regardless of the gender or parental roles of my client. Please use our CONTACT page to schedule an initial strategic consultation to analyze your situation and assist you in moving to the next phase of your life and your children's lives.