Need a citation for an Indiana appeals case, plus other stuff

[scout989]

What is the name of your state (only U.S. law)? Indiana

Hello!
I am trying to write a few documents for an appeals case where I am representing myself. This is an appeal from a civil hearing regarding child support. The appellant has introduced new evidence in the form of documents in his appendix and unsupported information in his brief. I have been told that he is not allowed to do so, but I can't find any procedural rule or other citation to support this. Also, he makes some statements (regarding unemployment rates etc.) in his brief that aren't supported by anything in the transcript or his appendix.

My questions:
1. Is he allowed to add new documents that were not available at the time of the hearing and were not referenced there?

2. Is he allowed to add new documents that support claims originally made in the hearing?

3. If he is not allowed to do one or both of those things, what legal theory, procedural rule, or case may I cite to support my contention that he can't?

4. Is it more appropriate/better to file a motion to strike those items from his brief and appendix, or to make the argument in my brief that his evidence, and thus the contentions that stem from them, are invalid?

5. Is he required to substantiate a statement regarding unemployment rates? Assuming so, is that something that he would have been allowed to submit as part of his appendix, or is that something that he would have had to bring up in the original hearing?

Thank you to anyone who replies!

 

[gator1]

Is this an appeal of a judgment from a district court to a state court of appeals?

Or is this an appeal from a magistrates ruling?

 

[scout989]

Honestly, I'm not sure. The original hearing and the order which is being appealed were from "Indiana Superior Court" with a district number, if that helps. Otherwise, how do I tell? Oh yeah, the transcript for the original hearing has a header section that reads "Appeal from the civil court." That sure sounds to me like it's an appeal from the district court to the state court of appeals.

Also, a further question that I just noticed: In his brief, the appellant quotes the Indiana Child Support Guidelines but cites it as the Indiana Parenting Time Guidelines. What can I do there? Can I move to strike that, or can I somehow use that fact in my argument in my brief?

 

[gator1]

Your ex filed his brief and you were notified by the court that your reply brief is now due by a certain date?

The reality of your ex filing a pro se appeal in a state court of appeals is that he has a snowballs chance in Hades of winning.

While NOT advisable, failing to respond to such an appeal would almost surely not make a difference. The burden is entirely upon the Appellant to show (1) he properly preserved all error, (2) the trial court abused its discretion, and (3) he strictly adhered to appellate rules of procedure. Failing any of these, the appeal is lost

The below link notes that in Indiana there is no requirement to file an appellee brief, but that it does lower the standard of review of the appeals court and is "less than optimal".

http://www.ciyoudixonlaw.com/appellate-process/

The point of the above is that as an appellant you have the high ground going into the appeal. The appeals court is starting with the presumption the Superior Court judge is entirely right and your ex is entirely wrong.

If you can, you should file a reply brief. Just do the best you can.

You already raised some good points with his mistakes, so point those out in your reply brief. Did your ex filing a motion for new trial or a rehearing prior to filing the appeal and request findings of facts from the court? If he did not, you can argue he failed to preserve error on appeal. If he is arguing anything not in the record, quote those parts of his brief and point them out and ask that they be stricken, which they invariably will be.

That said, appeals courts do occasionally remand cases back to the trial court for erring on child support calculations. I have only seen one pro se win on one specific error the judge made, but that was a well drafted and argued appeal.

So you need to pay attention to see if he actually made any GOOD points that the statutes say this and the judge ruled incorrectly, and that he complained about that point of error to the judge, and the judge overruled him.

 

[scout989]

Thanks for the reply, gator!

As I understand it, you're saying that I should mention his mistakes in my brief, not bother with a motion to strike. When I do mention in my brief that he is using new evidence that wasn't used in the lower court and therefore shouldn't be allowed, is there a specific name for that legal theory or anything that I can cite to support what I'm saying?

I'm not sure that he has correctly preserved error, because I am not a lawyer and can hardly understand the process of preserving error However, I'm not sure that matters because, the more I read about this, the more it looks as though he is (implicitly) asking the appellate court to review his case de novo. He doesn't actually refer to the transcript at all in his brief.

 

[gator1]

Indiana Rules of Appellate Procedure 42 specifies motion to strike is for "redundant, immaterial, impertinent, scandalous or other inappropriate matter", which is generally reserved for issues other than an appellant brief which strays from the record. You should only need to specify in your Reply brief those parts of the appellant brief which deviate from the record, and request the court not consider those parts. That is such a well established rule that requires no citation other than to point out the evidence which is not in the record and object to it.

http://www.in.gov/judiciary/rules/appellate/index.html

OSTROWSKI v. EVEREST HEALTHCARE INDIANA INC
To reiterate, the record before us does not show that the depositions in Ostrowski‟s appendix were admitted into evidence. As such, we cannot conclude that they were before the jury and will not consider them. See Soloman v. Blue Chip Casino, Inc., 772 N.E.2d 515, 519 (Ind. Ct. App. 2002) (“After reviewing the trial court‟s chronological case summary, the parties‟ appendices, and the parties‟ briefs, we see no indication that the deposition was made part of the record below. Accordingly, we cannot consider the deposition in making our determination.&#8221, trans. denied (2003); In re D.L.M., 725 N.E.2d 981, 983 n.4 (Ind. Ct. App. 2000) (noting “the well-established rule of appellate procedure that our court may not consider evidence outside the record” and declining to consider contact log report that was included in appendix but was not part of record).