Judges deny switch to custody case, however David objects because of selections that “bypass” the appeals rule.

The Indiana Supreme Court has denied transfer in a custody case reversed by the Indiana Court of Appeals, but a judge contradicted several concerns, including the “increasing number of appeals cases that expressly circumvent Appellate Rule 65(E).”

In an order Tuesday, the Supreme Court declined to accept the case of Ashley D. (Ramey) Day-Ping v. Charles T. Ramey III, 21A-DR-295.

On August 20, 2021, the COA ruled that the Johnson Circuit Court erred in awarding his father sole custody of a child.

The COA found that the trial court, Dr. instructed Linda McIntire to conduct a custody evaluation during the amendment process. The mother brought in two experts to review McIntire’s report, but the trial court found that “Dr. McIntire’s findings are more compelling, reasonable and consistent with the evidence.”

The COA overturned the trial court’s order, requiring a review of the evidence and a hearing within 30 days.

“Based on the weight given by the trial court to the father’s statements and Dr. McIntire, particularly given that a jury found that the father and girlfriend committed fraud in reporting the mother to DCS, we would like the trial court to reconsider the evidence taking into account the totality of the circumstances.” , Judge Melissa May ruled in favor of the unanimous COA.

Following the COA’s decision, a transfer request filed by Ramey argued, “The Court of Appeals made an improper reconsideration of evidence in overturning the trial court’s order. The standard of review for custody changes is an abuse of power and a judgment should only be overturned if it is clearly defective.”

While the petition was denied, Judge Steven David said he granted the transfer for two reasons.

“First, I am concerned that the Court of Appeal misapplied the standard of review, relying in part on information not available to the trial court and reassessing the weight of testimonies,” David wrote. “I also believe it is imperative to address the growing number of appellate opinions that explicitly circumvent Appellate Rule 65(E) and effectively finalize the appeals court’s decisions before we have an opportunity to review the merits. See e.g. B. DeWees v. State, 163 NE3d 357, 367 (Ind. Ct. App. 2021), vacated; On OG, 159 NE3d 36, 46 (Ind. Ct. App. 2020), transl. denied Yeager v. State, 148 NE3d 1025, 1029 (Ind. Ct. App. 2020), vacated.

“Appeal rule 65(E) requires certification of an appeal opinion only after the time limit for any request for rehearing, transfer, or review; Circumventing this rule encourages parties and court proceedings to act in reliance on an opinion that has not yet been considered by the court of last resort,” he continued. “I object to the refusal of transmission to strongly discourage this practice.”