Sholes v. Sholes

732 N.E.2d 1252, 2000 Ind. App. LEXIS 1213, 2000 WL 1141575

• Court: Indiana Court of Appeals
• Decided: August 14, 2000
• Docket: 27A02-9906-CV-445
• Status: Published

Opinions

OPINION

SULLIVAN, Judge

Respondent-Appellant, David T. Sholes (David), appeals the trial court’s denial of his motion to set aside a judgment in a dissolution action filed by Petitioner-Ap-pellee Christine K. Sholes (Christine).

We reverse.

The dispositive issue is whether the trial court erred in denying both David’s motion for appointment of pauper counsel and his motion for continuance of the T.R. 60(B) hearing.

On February 10, 1998, Christine filed a petition to dissolve her marriage to David. The record discloses that service of the petition and summons upon David was accomplished by certified mail, and that the return receipt was filed with the court on February 17,1998.

On April 14, 1998, the trial court held a final hearing on the petition. David, who was then and is now serving a life sentence without chance of parole in the Indiana State Prison at Michigan City, did not appear in person or by an attorney. On April 16, 1998, the trial court issued a decree and final order dissolving the marriage and dividing the marital property.

David subsequently filed a belated prae-cipe (February 19, 1999), a motion to set aside the judgment (April 15, 1999) ¹ and a motion to correct error (May 20, 1999). The trial court set the motion for relief from the decree (hereinafter, the “60(B) motion”) for a hearing April 29, 1999. The hearing, which was not recorded, was held on that date. Prior to the hearing on the motion, David filed a motion requesting pauper counsel and for transport from the prison to the hearing. Both motions were denied. On the day of the hearing, David filed a motion for a continuance of the hearing. This request was denied, as was his 60(B) motion. The motion to correct error pertaining to the trial court’s denial of the other motions was also denied.

Although in his Verified Request for Appointment of Pauper Counsel, Sholes did not specifically cite I.C. 34-1-1-3 (now 1.C. 34-10-1-1 and 2) (Burns Code Ed. Repl.1998) as authority for his right to appointment of such counsel, it is clear that under oath he claimed indigency and sought appointment of counsel as his right.

The matter is clearly governed by the statute and by a recent decision of another panel of this court in Holmes v. Jones (1999) Ind.App., 719 N.E.2d 843. In Holmes, the court expressed its concerns with the implications of the statute which “places no boundaries or limits on the type or number of lawsuits for which indigent litigants can demand court-appointed counsel.” 719 N.E.2d at 847. Nevertheless, the court appropriately held that the clear and unambiguous language of the statutory provisions was no doubt intended to have meaning, and that absent a clearly manifested purpose to provide otherwise, that meaning must be given effect by the court.

By even stronger reason than was present in Holmes, we are constrained to hon- or the mandate of the statute giving the right to court-appointed counsel in all civil actions. Following the Holmes decision, the Second Regular Session of the 111th Indiana General Assembly convened and not only had opportunity to address the matter but in three separate bills did so.

On January 10, 2000, Senate Bill 414, which gave the courts discretion under exceptional circumstances to appoint counsel for indigents in civil matters but did not require such appointment, was introduced. On February 7, 2000, the bill passed the Senate 42-8. It was then referred to the House of Representatives and assigned to committee but received no further attention. A quite similar bill was introduced in the House of Representatives on January 11, 2000, as House Bill 1348. However, following referral to committee, it too received no further attention. In addition, another Senate Bill, No. 258, which would have eliminated the general duty of a county to provide counsel for indigents in civil actions, was introduced on January 10, 2000, and on that date was assigned to committee but died in that body.

It is therefore quite clear that our legislature has consciously decided to retain in place the obligation upon courts to appoint counsel for indigent civil litigants in all situations. It is not our prerogative to look behind that unambiguous policy decision, a decision made not once but three separate times during the legislative session.²

For the reasons set forth, the decision required of us is clear and unmistakable. We therefore reverse and remand with instructions to vacate all proceedings which were conducted after the filing of Sholes’ Verified Request for Appointment of Pauper Counsel, to appoint pauper counsel for Sholes and for further proceedings not inconsistent with this opinion.

VAIDIK, J., concurs. HOFFMAN, Sr. J., dissents with opinion.

1 . David denominated this filing as a “Motion for Relief from Default Dissolution Decree.”

2 . We readily acknowledge that the recent legislative session was the biennial short session during which the focus is placed primarily upon budgetary matters, and in which there is great competition for time and legislative resources to be given to more bills than can reasonably' be fully and fairly considered. Be that as it may, the three bills referenced herein would seem to have substantial budgetary impact upon all counties within the state and the nature of the session would not seem to dilute the fact that the lack of legislative action was a conscious policy decision.