Lack Of Jurisdiction Keeps Cemetery Case In Court

Olivia Covington  for www.theindianalawyer.com

A woman’s fight to bury her mother in a burial site that she had purchased but that was mistakenly resold will continue after the Indiana Court of Appeals found that a small claims court did not have jurisdiction to grant her injunctive relief.

In 1982, Kathy Salyer purchased five contiguous gravesites in Washington Regular Baptist Church Cemetery. Her father, and first and second husbands were buried in three of the sites, and Salyer intended to bury her mother in the northern-most gravesite and herself between her two husbands.

However, Salyer later discovered that a person named Lowell Johnson had been buried in the site intended for her mother. The cemetery admitted that it had inadvertently sold the site for the burial of Johnson after Salyer had already purchased it, but because Johnson’s family objected to his relocation, the cemetery took no action.

Salyer took the issue to small claims court, alleging theft and arguing that she was entitled to treble damages, attorney fees and court costs. She also demanded that Johnson’s body be moved. Johnson’s daughter, Kristy Sams, was an intervening third party. At the bench trial, Salyer testified that her mother had died, so she had her body cremated and buried in the same gravesite as her father.

In its May 2016 order, the court found that the best way to correct the problem was to compensate Salyer with a burial site south of her burial site, to refund her $75 for the purchase of the northern lot and to reimburse her for $94 in court costs. However, the court also found that because Salyer had already cremated her mother and buried her with her father, specific performance was not warranted.

The Ripley Superior Court denied Salyer’s motion to correct error, so she appealed, arguing that because the cemetery wrongfully buried Johnson in her gravesite, it must relocate him. She pointed specifically to Indiana Code 23-14-59-2, which holds, in part, that when a wrongful burial occurs, “the cemetery owner shall: at the expense of the cemetery owner, correct the wrongful burial … as soon as practical after becoming aware of the error.”

Although the Indiana Court of Appeals agreed Wednesday that a court may order a cemetery to perform its duty under that statute, it also held that under the preceding statute, which finds that cemetery owners are not liable in any action for a burial in the wrong lot, the trial court did err in holding the cemetery liable for damages in Salyer’s case.

Further, the appellate court wrote that I.C. 23-14-59-2 constitutes an order to specific performance or injunctive relief, and that the decision to give Salyer another burial site also constitutes an order for injunctive relief. However, small claims courts do not have jurisdiction to enter orders to specific performance or injunctive relief under Indiana statute.

Thus, the order was reversed and the case remanded for consideration of transfer to the Ripley Superior Court’s plenary docket.

WHAT ARE YOU THANKFUL FOR TODAY?

Todays “READERS POLL” question is: Do you feel its time for Mayor Winnecke to make a public statement concerning the Zoning Appeals Board rejection of an upscale Restaurant-Bar on West Franklin Street?

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Man Must Continue To Pay Child Support For Son He Claimed Was His, Court Holds

Olivia Covington for www.theindianalawyer.com

A divided Court of Appeals panel has affirmed an order requiring a non-biological father to pay child support for his wife’s child, finding that because the man supported the child throughout his life, he is legally estopped from challenging the child support order.

Shortly after his marriage to Ronnie Sheetz in 2002, Benjamin Sheetz was sent to prison. While he was incarcerated, Ronnie Sheetz became pregnant by another man. Together the couple agreed to tell people that she had become pregnant during a conjugal visit, that she would not tell the biological father about the child and that they would raise the baby together as their own.

When the baby was born, Benjamin Sheetz signed the birth certificate as the father and told his wife not to contact the biological father, seek support from him or institute paternity proceedings. When Ronnie Sheetz filed for divorce in May 2014, she claimed that her first child and her other two children with her husband were all children of the marriage. Benjamin Sheetz was ordered to pay child support for all three, and he did not object.

However, Ronnie Sheetz eventually told her first child that Benjamin Sheetz was not his biological father. The Adams Circuit Court subsequently entered findings that concluded that Benjamin Sheetz was “estopped from denying his obligations to (the child)” because “(t)o hold otherwise would be unjust” and “an injustice to a young man who was led to believe that (Benjamin was) his father when he is not.”

Benjamin Sheetz appealed, arguing that he should not have to pay child support for his ex-wife’s first child because he is not his biological father. Indiana Court of Appeals Chief Judge Nancy Vaidik did not disagree with that fact, but wrote in a Wednesday opinion that there was more to the story.

Specifically, Vaidik pointed to the fact that Benjamin Sheetz had agreed to raise the child as his own and had done so for 12 years, and had went so far as to prevent his ex-wife from instituting paternity proceedings.

“Under these facts, Husband is estopped from rebutting the presumption that he is G.B.S.’s biological father,” Vaidik wrote for the majority.

The decision is based on the doctrine of equitable estoppel, which holds that a party may be precluded by his own actions from asserting a right he would otherwise be able to claim, Vaidik wrote. The doctrine can be invoked when one party “knowingly misleads or induces another party to believe and act upon his conduct in good faith without knowledge of the facts.”

In the instant case, Vaidik wrote that Benjamin Sheetz induced his ex-wife to believe that he would raise and support G.B.S. as his own child, leading to the passage of her opportunity to file a paternity action against the child’s biological father.

Further, the chief judge wrote that public policy also supported equitable estoppel in the Sheetzes’ situation because if it did not, the child would essentially be left without a father.

However, Judge Edward Najam dissented, writing in a separate opinion that Indiana does not recognize equitable estoppel, adoption by estoppel or in loco parentis as grounds for a child support order because “a child of the marriage” refers only to natural and adoptive parents. Additionally, Najam wrote that Ronnie Sheetz had not stated a claim for equitable relief because she testified that she knows the name of the child’s biological father and, thus, could establish paternity.

Indiana Conservation Officers Enter A New Dimension Of Search And Rescue

Indiana Conservation Officers have added Small Unmanned Aircraft Systems (SUAS) to their search and rescue capabilities.  The DNR Law Enforcement Division is the first state emergency response agency to receive official endorsement to utilize these devices for the purpose of search and rescue operations.

“The SUAS machines will greatly enhance our ability to bring quick resolve in finding lost children, hikers, hunters, outdoor enthusiasts and injured people”, said Captain Keith Dinn, Support Services Assistant Commander.  “The training and expertise our certified pilots have received gives me confidence that our officers and other emergency responding agencies will have a much higher rate of success  in locating citizens in need with a much quicker response time.”

Currently, five Indiana Conservation Officers have become certified pilots of the SUAS machines and will be prepared for statewide response.   The DNR Law Enforcement Division has two SUAS units with future goals of adding more to the fleet.

Along with the ability to locate lost citizens, the SUAS will map out the obstacles for the emergency response personnel and provide knowledge of dangers before encountering the obstacle.

“I could not be more proud of our agency as we make this innovative and futuristic step forward to enhance our search and rescue response capabilities to reach our citizens in need”, stated Danny L. East, DNR Law Enforcement Director.

PAUL RYAN’S PROPOSED BUDGET CUTS

FOOTNOTES:  A List of Republican Budget Cuts
Notice S.S. and the military are NOT on this list .
These are all the programs that the new Republican House has proposed cutting.  Read to the end.

* Corporation for Public Broadcasting Subsidy — $445 million annual savings.
* Save America ‘s Treasures Program — $25 million annual savings.
* International Fund for Ireland — $17 million annual savings.
* Legal Services Corporation — $420 million annual savings.
* National Endowment for the Arts — $167.5 million annual savings.
* National Endowment for the Humanities — $167.5 million annual savings.
* Hope VI Program — $250 million annual savings.
* Amtrak Subsidies — $1.565 billion annual savings.
* Eliminate duplicating education programs — H.R. 2274 (in last Congress), authored by Rep. McKeon , eliminates 68 at a savings of $1.3 billion annually.
* U..S. Trade Development Agency — $55 million annual savings.
* Woodrow Wilson Center Subsidy — $20 million annual savings.
* Cut in half funding for congressional printing and binding — $47 million annual savings.
* John C. Stennis Center Subsidy — $430,000 annual savings.
* Community Development Fund — $4.5 billion annual savings.
* Heritage Area Grants and Statutory Aid — $24 million annual savings.
* Cut Federal Travel Budget in Half — $7.5 billion annual savings
* Trim Federal Vehicle Budget by 20% — $600 million annual savings.
* Essential Air Service — $150 million annual savings.
* Technology Innovation Program — $70 million annual savings.
*Manufacturing Extension Partnership (MEP) Program — $125 million annual savings..
* Department of Energy Grants to States for Weatherization — $530 million annual savings.
* Beach Replenishment — $95 million annual savings.
* New Starts Transit — $2 billion annual savings.
* Exchange Programs for Alaska Natives, Native Hawaiians, and Their Historical Trading Partners in Massachusetts — $9 million annual savings
* Intercity and High Speed Rail Grants — $2.5 billion annual savings.
* Title X Family Planning — $318 million annual savings.
* Appalachian Regional Commission — $76 million annual savings.
* Economic Development Administration — $293 million annual savings.
* Programs under the National and Community Services Act — $1.15 billion annual savings.
* Applied Research at Department of Energy — $1.27 billion annual savings..
* Freedom CAR and Fuel Partnership — $200 million annual savings..
* Energy Star Program — $52 million annual savings.
*Economic Assistance to Egypt — $250 million annually.
* U.S.Agency for International Development — $1.39 billion annual savings..
* General Assistance to District of Columbia — $210 million annual savings.
* Subsidy for Washington Metropolitan Area Transit Authority — $150 million annual savings.
*Presidential Campaign Fund — $775 million savings over ten years..
* No funding for federal office space acquisition — $864 million annual savings.
* End prohibitions on competitive sourcing of government services.
* Repeal the Davis-Bacon Act — More than $1 billion annually.
* IRS Direct Deposit: Require the IRS to deposit fees for some services it offers (such as processing payment plans for taxpayers) to the Treasury, instead of allowing it to remain as part of its budget — $1.8 billion savings over ten years.
*Require collection of unpaid taxes by federal employees — $1 billion total savings. WHAT’S THIS ABOUT?
* Prohibit taxpayer funded union activities by federal employees — $1.2 billion savings over ten years.
* Sell excess federal properties the government does not make use of — $15 billion total savings.
*Eliminate death gratuity for Members of Congress. WHAT???
* Eliminate Mohair Subsidies — $1 million annual savings.
*Eliminate taxpayer subsidies to the United Nations Intergovernmental Panel on Climate Change — $12.5 million annual savings. WELL ISN’T THAT SPECIAL
* Eliminate Market Access Program — $200 million annual savings.
* USDA Sugar Program — $14 million annual savings.
* Subsidy to Organization for Economic Co-operation and Development (OECD) — $93 million annual savings.
* Eliminate the National Organic Certification Cost-Share Program — $56.2 million annual savings.
*Eliminate fund for Obamacare administrative costs — $900 million savings.
* Ready to Learn TV Program — $27 million savings..
* HUD Ph.D. Program.
* Deficit Reduction Check-Off Act.

*TOTAL SAVINGS: $2.5 Trillion over Ten Years

ADDITIONAL FOOTNOTE:  My question is, what is all this doing in the budget in the first place