State Ex Rel. Combs v. Decatur Circuit Court

935 N.E.2d 173, 2010 Ind. LEXIS 715, 2010 WL 3876820

Opinion

PERMANENT WRIT OF MANDAMUS AND PROHIBITION

Relator, by counsel, filed a verified petition for writ of mandamus and prohibition under the rules governing original actions. Relator seeks a permanent writ that would require Respondents to grant Relator's motion for change of venue from the judge, a motion that Relator filed the same day that he filed his petition to modify child support. A brief opposing issuance of the writ was filed.

Each Justice has had an opportunity to review the petition for writ of mandamus and prohibition and other papers filed in this matter. Each Justice has met in conference to discuss the matter. A majority of the Court has voted to grant the permanent writ of mandamus and prohibition.

Accordingly, the Court GRANTS the permanent writ and ORDERS the Respondents, the Decatur Cireuit Court and the Hon. John A. Westhafer, as Judge thereof, to grant Relator's motion for change of venue from the judge. Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

SHEPARD, C.J., and DICKSON and BOEHM, JJ., vote to grant the permanent writ. RUCKER, J., votes to grant a permanent writ requiring the granting of Relator's motion for change of venue from the judge prospectively and in relation to Relator's petition to modify child support, but not in relation to other matters previously filed and still pending before the trial court. SULLIVAN, J., votes to deny, believing that the change of judge right provided by the third sentence of TR. 76(B) is not available on these facts. The right is only available "after a final decree is entered," and the decree here is not "final" within the meaning of the rule because it is the subject of a pending motion to correct error.