In high-stakes custody (and property) litigation, which is what most domestic cases boil down to, particularly those with children, a loss in the Court of appeals, denial of rehearing, and/or a subsequent loss in the Supreme Court or any combination of these can be devastating. In the era of e-filing in Indiana, a new phenomenon has occurred whereby litigants often monitor the docket and know immediately their case has been decided (often called being “handed down”) before the attorney knows about the decision. If the case, the question the client poses to his or her attorney is a variation of “now what” or “what can I do”? This topic is the focus of this blog.
As most appellants learn, the appellate process is rule-driven. Thus, the place to start is with any applicable rules under the Indiana Rules of Appellate Procedure. As it relates to rehearing, the governing Rule is Indiana Rule of Appellate Procedure 54. Under this rule, it sets out a party may seek rehearing in four (4) situations: (1) a published opinion, (2) a not-for-publication memorandum decision, (3) an order dismissing an appeal and (4) an order declining to authorize the filing of a successive petition for post-conviction relief.1 Although most litigants in this situation are eager to get the petition for rehearing filed right away, a petition for rehearing may be filed no later than thirty (30) days after the decision is issued as time is computed under the appellate rules.2
This noted, the single time the rule does not provide for a request for rehearing is with denial of a petition to transfer to the Indiana Supreme Court. In that case, the matter is disposed of and the Court of Appeals decision stands. The trial court will resume jurisdiction once the opinion of the Court of Appeals is certified. Under the relevant rule, the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court will certify the opinion or the memorandum decision to the trial court Administrative Agency after the time for all petitions for rehearing, transfer, or review has expired, unless all the parties request earlier certification.3
Presupposing transfer was denied or granted, and the appellate lost in the Indiana Supreme Court and any rehearing request denied in that Court, the only other appellate remedy is filing a Petition for certiorari to the United States Supreme Court within ninety (90) days after entry of the last court decision.4 These are rarely granted with any state or federal appellate court decision. Yet, it may be granted. This most certainly surprised the Troxels. In Troxel v. Granville, SCOTUS struck down a Washington State law that allowed any third party to petition a state court for child visitation rights over parental rights, noting the right of a parent to raise their children is one of the oldest fundamental rights protected by the United States Constitution.5
This noted, there are no governing or guiding rules in the Indiana Rules of Appellate, including Indiana Rule of Appellate Procedure 54 Procedure, nor in case law per se for lawyers to reference to advise clients whether to seek rehearing in the Court of Appeals or Indiana or the Indiana Supreme Court. Rehearing is rare in the Court of Appeals or Indiana Supreme Court. However, since the majority of Indiana case law is that of the Court of Appeals of Indiana, meaning a transfer was not sought or granted, a review of its opinions of the Court of Appeals on rehearing demonstrates it clearly considers and may grant rehearing where it has made a mistake in its decision. Well-reasoned, accurate decisions are critical in solid appellate law.
For instance, in In re Paternity of S.C., the Court of Appeals granted rehearing because it had relied on erroneous findings made by the trial court.6 To correct this factual matter and have an accurate reported opinion, the Court of Appeals granted rehearing and corrected this error. In the recent opinion on rehearing in the Geels v. Morrow case, the Court of Appeals granted transfer because it had relied on guardianship legal analysis when the case was one about whether the petitioners were de facto custodians; in this case, it corrected its error of fact/law.7
This begs the question of what the Indiana Supreme Court may consider in granting transfer, which is extremely rare since it only accepts transfer on a few dozen cases a year it receives from Indiana Court of Appeals decisions. In some cases, for example, the Court may clearly grant transfer to clarify a controversial public policy legal point that comes to light in its case. The classic case representing this principle of law is Barnes v. State, where Hoosiers were literally protesting at the Indiana State Capital over the decision the Indiana Supreme Court issued on rehearing.
In the initial Barnes decision, the Supreme Court held the trial court erred when it refused to give Mr. Barnes’ (tendered or proposed) jury instruction regarding the right of a citizen to resist unlawful entry into his home by the police, reversing his conviction.8 On rehearing, while acknowledging a person’s home is his or her castle, the Supreme Court vacated the earlier decision; it held Mr. Barnes was not entitled to a jury instruction regarding the right of a citizen to resist unlawful entry by police into his or her home and affirmed his conviction.9
In the absence of any additional appellate relief, the case is certified and the trial court resumes jurisdiction. If the matter was a divorce property dispute, all the trial court has limited jurisdiction to do is enforce the decision (unless reversed). With physical and legal custody, the trial court in a divorce or paternity case retains jurisdiction to modify custody, as well as parenting time and child support. This continues until the child(ren) is emancipated or graduates from college if the trial court orders parents to contribute toward his or her children’s higher education expenses. However, there is a higher burden of proof that has to be met to modify in most cases. A child-related modification petition filed just after a loss in the appellate courts is likely to be dimly viewed by the trial court in most circumstances.
This blog was written by advocates at Ciyou & Associates, P.C. We hope it assists you in understanding the rehearing process. If so, it makes you a more educated legal consumer. Ciyou & Associates, P.C. advocates are admitted to all Indiana appellate state and federal courts, as well as the United States Supreme Court. This blog is intended to provide general educational advice. It is not intended to be relied upon in any particular situation, nor is it legal advice. This blog is an advertisement.
- Indiana Rule of Appellate Procedure 54(A).
- Indiana Rule of Appellate Procedure 54(B).
- Indiana Rule of Appellate Procedure 65(E).
- United States Supreme Court Rule 13(1).
- Troxel v. Granville, 530 U.D. 57 (2000).
- In re paternity of S.C., 970 N.E.2d 248 (Ind.Ct.App.2012).
- Geels v. Morrow, 188 N.E.3d 46 (Ind.Ct.App.2022).
- Barnes v. State, 925 N.E.2d 420 (Ind. 2010).
- Barnes v. State, 946 N.E.2d 572 (Ind.2011).