Marilyn Odendahl for www.theindianalawyer.com

The Indiana Court of Appeals has reversed another annexation ruling, this time finding the town of Whitestown can move forward with plans to incorporate a portion of Perry Township.

In Town of Whitestown, Indiana v. Rural Perry Township Landowners, 29A05-1409-MI-437, the appellate panel held the trial court had too narrowly interpreted Indiana’s annexation statute. Specifically, the Court of Appeals reviewed Indiana Code subsection 36-4-3-13(c) and 36-4-3-13(e)(2)(B).

Remonstrators in Boone County challenged Whitestown’s plans to annex 621.87 acres in the adjacent Perry Township. In August 2014, the Hamilton Superior Court agreed with the remonstrators that Whitestown had not demonstrated it needed and could develop the proposed annexation area in the “reasonably near future,” as required by I.C. 36-4-3-13(c).

The Court of Appeals pointed out that while previous appellate panels have established the additional tax revenues cannot be the sole reason for the annexation, the annexation statutes should not be used to impede a municipality’s future plans for growth.

“…the test prescribed under the statute is not whether the annexing municipality can make do without the territory it seeks to annex,” Judge L. Mark Bailey wrote for the court. “The statutory test, as interpreted by Indiana’s appellate courts, is whether Whitestown could use the Annexation Area for a purpose other than increased collection of property taxes in the reasonably near future. The trial court’s findings recognized that this was the case but construed the language of the statute too narrowly in light of the deference properly accorded under our case law.”

The Court of Appeals noted the testimony about the town’s rapid growth and Whitestown’s efforts to encourage, predict and plan for that growth. The town also presented plans for the infrastructure which would have to run through the unincorporated area in order to connect the municipality with the new waste water treatment plant currently under construction.

However, the Court of Appeals characterized the trial court as wholly adopting the remonstrators’ arguments and arriving at conclusion that did not acknowledge the evidence that Whitestown had met the statutory requirements on the need and use of the annexation area.

“…we remind trial courts of both the deferential standard accorded to annexing municipalities, and the risks associated with wholesale adoption of a party’s strongly one-sided proposed findings and conclusions,” Bailey wrote.

The Court of Appeals ruled the trial court had erred in it interpretation of the Indiana Code and in its application of the statutory provisions to its findings of fact. It remanded the case with instructions to enter judgment in favor of Whitestown.

The Whitestown reversal is similar to the statutory interpretation offered in Town of Fortville v. Certain Fortville Annexation Territory Landowners, 30A01-1410-MI-442.

This July 2, 2015, decision from the Court of Appeals concluded the Hancock Circuit Court erred by applying the wrong evidentiary standard when analyzing Fortville’s need and plans for the annexation area. The trial court ruled Fortville did not meet its statutory burden because it did not have any plans for any physical construction in the near future.

But the Court of Appeals noted, Fortville was providing water and emergency services to the unincorporated area and intended to expand utilities. In addition, the town wanted to manage the growth that was occurring in areas to the north and west of the annexation parcel.

The Court of Appeals held non-physical brick and mortar development uses should be considered when determining whether the municipality fulfills the requirements of I.C. 36-4-3-13( c)(2). Limiting the statute to physical construction or development, the court concluded, would result in bad policy and likely harm both the municipality and the area to be annexed.

Judges John Baker, Melissa May and Paul Mathias comprised the panel for the Fortville decision. Along with Bailey, the other judges on the Whitestown panel were Patricia Riley and Michael Barnes.

Dave Stafford for www.theindianalwyer.com

A dissenting judge on an Indiana Court of Appeals panel that Wednesday reversed a child custody order implied the majority reweighed evidence to reach its conclusion.

Judge Patricia Riley, joined by Judge L. Mark Bailey, reversed denial of a trial court order denying a mother’s petition for modification of custody of minor daughter J.S. and rule to show cause in In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele, 45A04-1412-DR-600. The majority granted custody to mother, remanded to the trial court for a determination of whether joint custody would be in J.S.’s best interest, and to establish father’s parenting schedule where distance is a factor.

“While we acknowledge the deference entitled to the trial court’s rulings in family law matters, in cases such as these, where the evidence at trial presents a different picture and the findings of the trial court are rife with errors, we have to reevaluate the level of deference granted,” Riley wrote for the majority. The decision grants custody to mother who now lives in Oregon.

In large part due to father’s change of employment that required J.S. to spend long hours in daycare, the majority held that a significant change in circumstance occurred that warranted modification of custody. Riley wrote that the trial court erred by applying an erroneous standard that focused solely on father’s situation as the predominant and decisive factor without regard for the totality of the change, and most importantly, its impact on J.S.

Dissenting Judge Michael Barnes wrote, “The standard of review in child custody matters is well settled. ‘Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.’ Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). … On appeal, it is not enough that the evidence might support some other conclusion, it must positively require the conclusion urged by the appellant before there is a basis for reversal.”

Barnes noted a guardian ad litem testified both mother and father “are good, involved parents” with whom J.S. has a wonderful relationship. The GAL declined to make a final recommendation because the case was “such a close call.”

“Based on this evidence, I believe this is the very circumstance in which long-standing precedent requires us to defer to the trial court’s assessment of witnesses and to affirm the trial court’s decision,” Barnes wrote.

The majority also found father in contempt, and on remand, the trial court will determine mother’s monetary damages, if any.

Mother claimed father failed to share details of J.S.’s care, academic progress, extracurricular activities and more as required under an agreed order. “Father is passive-aggressive in excluding Mother’s participation in J.S.’s upbringing,” Riley wrote for the majority.

“Due to the totality of the evidence before us, we find that the trial court’s decision denying Mother’s petition for rule to show cause is against the logic and effect of the facts and circumstances,” she wrote.

Indianapolis – Tomorrow, First Lady Karen Pence, Indiana’s Bicentennial Ambassador, will offer remarks at the 6^th Annual Hoosier Salon Awards Ceremony and Reception of the 18^th Annual Cooperative Calendar of Student Art, a 2016 Indiana Bicentennial Legacy Project. There, she will help present awards to Hoosier students from across Indiana. The Hoosier Salon is a statewide not-for-profit arts organization whose mission is to create an appreciation of art by promoting Hoosier artists and their work. Details below.

Thursday, July 30:

2:45 p.m. EDT – First Lady Karen Pence to offer remarks, help present awards at 6^th Annual Hoosier Salon Awards Ceremony

*Media are welcome to attend.

Eugene and Marilyn Glick Indiana History Center – Multipurpose Room, 450 W. Ohio Street, Indianapolis, IN