Walker v. West, 665 N.E.2d 586 (Ind. 1996). · Go Syfert
Walker v. West, 665 N.E.2d 586 (Ind. 1996). Cases Citing This Book View Copy Cite
56 citation events (50 in the last 25 years) across 2 distinct courts.
Strongest positive: Towne & Terrace, Corp v. City of Indianapolis (indctapp, 2020-09-22) · Strongest negative: Ostrowski v. Everest Healthcare Indiana, Inc. (indctapp, 2011-10-31)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited "but see" Ostrowski v. Everest Healthcare Indiana, Inc. (2×) also: Cited as authority (rule)
Ind. Ct. App. · 2011 · signal: but see · confidence high
But see Pabey v. Pastrick, 816 N.E.2d 1138, 1141-42 (Ind.2004), and Walker, 665 N.E.2d at 588 (where appellants did not submit evi-dentiary transcript, our supreme court reviewed arguments presented because they did not involve any challenges to trial court’s findings of fact.).
discussed Cited as authority (rule) Towne & Terrace, Corp v. City of Indianapolis
Ind. Ct. App. · 2020 · confidence medium
If the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence. [32] The Indiana Supreme Court has addressed an appellant’s failure to include a transcript on appeal when factual issues are presented and held that, “‘[a]lthough not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.’” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Cr…
discussed Cited as authority (rule) In the Matter of the Guardianship of A.Y.H. (Minor Child) Yahya Hemaid (Father) v. Rosegina Wheeler and Randall Wheeler (Guardians)
Ind. Ct. App. · 2019 · confidence medium
Prods., Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (“Although not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.”) (quoting In re Walker, 665 N.E.2d 586, 588 (Ind. 1996).
discussed Cited as authority (rule) Ashley M. Obando (Coffey) v. Michael A. Coffey (mem. dec.)
Ind. Ct. App. · 2019 · confidence medium
App. R. 9(F)(5) (emphasis added). [6] Mother’s arguments depend upon the evidence presented during the hearing, yet she did not include the transcript of the hearing in the appellate record.3 Our Supreme Court has stated that “failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” See In re Walker, 665 N.E.2d 586, 588 (Ind. 1996).
discussed Cited as authority (rule) In the Matter of the Involuntary Termination of the Parent-Child Relationship of: E.J. and J.J. (Minor Children), and L.J. (Father) v. The Indiana Department of Child Services (mem. dec.)
Ind. Ct. App. · 2018 · confidence medium
In re Walker, 665 N.E.2d 586, 588 (Ind. 1996). [11] Father’s Statement of Facts as presented in his appellate brief consists almost entirely of a direct recitation of the trial court’s June 13, 2018, written order denying him relief, none of which supports the factual underpinnings of his arguments.
cited Cited as authority (rule) In Re the Marriage of: Jeffrey E. Nelson v. Julie A. Nelson (mem. dec.)
Ind. Ct. App. · 2018 · confidence medium
Products, Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (quoting In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)).
discussed Cited as authority (rule) Kenitta K. Chandler v. Rhonda Bowser (mem. dec.)
Ind. Ct. App. · 2018 · confidence medium
Products, Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (quoting In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)). [11] Chandler has chosen to rest her appeal on the testimony of Dr. Cater alone, requesting only the “[t]rial testimony of Dr. Robert Cater and Stipulated Medical Bill Exhibit of jury trial conducted on April 18 & 19, 2017” be Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CT-1346 | May 7, 2018 Page 6 of 10 prepared.
discussed Cited as authority (rule) James W. Klenner v. Lisa M. Klenner (mem. dec.) (2×) also: Cited "see"
Ind. Ct. App. · 2017 · confidence medium
Products, Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (citing In re Walker, 665 N.E.2d 586, 588 (Ind. 1996)); Ostrowski v. Everest Healthcare Ind., Inc., 956 N.E.2d 1144, 1147-1148 (Ind. Ct. App. 2011) (holding that defendant waived challenge to trial court’s jury instructions by failing to include relevant portions of eight-day trial in fifty-six page transcript submitted to court on appeal); Fields v. Conforti, 868 N.E.2d 507, 511 (Ind. Ct. App. 2007) (holding that defendant waived any arguments that depended on the evidence at trial by failing to request a transcript of the bench trial…
discussed Cited as authority (rule) Coventry Court Townhomes v. Brittany D. Bigger (mem. dec.) (2×) also: Cited "see"
Ind. Ct. App. · 2017 · confidence medium
In re Walker, 665 N.E.2d 586, 588 (Ind. 1996); Lifeline Youth & Family Servs., Inc. v. Installed Bldg.
cited Cited as authority (rule) Christine Wedding v. Donald S. Wedding (mem. dec.)
Ind. Ct. App. · 2017 · confidence medium
In re Walker, 665 N.E.2d 586, 588 (Ind. 1996); Lifeline Youth & Family Servs., Inc. v. Installed Bldg.
discussed Cited as authority (rule) Christopher E. Wilson v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2017 · confidence medium
“Although not fatal to an appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind. 1992)).
discussed Cited as authority (rule) Jeffrey B. Morgan and Wendi S. Morgan v. Andrew White and Holly White
Ind. Ct. App. · 2016 · confidence medium
Herr v. Carter Lumber, Inc., 888 N.E.2d 853, 854 (Ind.Ct.App.2008) (quoting In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Gi-p., 605 N.E.2d 150, 160 (Ind.1992))), trans. denied; see also Pabey v. Pastrick, 816 N.E.2d 1138, 1 Mill 42 (Ind.2004) (noting that the appellant "argued that no transcript was necessary because he did not contend that the trial court's findings of fact were unsupported by the evidence; in fact, he repeatedly cited the trial court’s findings of fact and did not reference facts outside those found by the trial court,” and holding that "t…
discussed Cited as authority (rule) Bill Snider v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2015 · confidence medium
In Criminal Appeals, the Notice of Appeal must request the Transcript of the entire trial or evidentiary hearing, unless the party intends to limit the appeal to an issue requiring no Transcript. [21] Our Supreme Court has held that, “[a]though not fatal to an appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind. 1992), and discussing prior appellate rules).
discussed Cited as authority (rule) In re the Marriage of: Wade R. Meisberger v. Margaret Bishop f/k/a Margaret Meisberger
Ind. Ct. App. · 2014 · confidence medium
Notice of Appeal shall designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal.” Appellate Rule 9(F)(5) further provides that, “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.” The Indiana Supreme Court has addressed an appellant’s failure to include a transcript on appeal when factual issues are presented and held that, “[a]lthough not fatal to the appeal, failure …
discussed Cited as authority (rule) Glenn Hatmaker v. Betty Hatmaker
Ind. Ct. App. · 2014 · confidence medium
“Although not fatal to an appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence. ” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (citation omitted).
discussed Cited as authority (rule) Indiana Commissioner of Insurance Stephen W. Robertson, on behalf of Indiana Patient's Compensation Fund v. Kimi Clark, Personal Representative of the Estate of William Troy Clark
Ind. Ct. App. · 2014 · confidence medium
“Although not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (citation omitted).
discussed Cited as authority (rule) In re the Paternity of E.S.: Makayla LeGault v. Michael J. Scott
Ind. Ct. App. · 2014 · confidence medium
Prods., Inc., 996 N.E.2d 808, 814 (Ind. Ct. App. 2013) (citing In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (failure to include a transcript “works a waiver of any specifications of error which depend upon the evidence.”)).
discussed Cited as authority (rule) Lifeline Youth & Family Services v. Installed Building Products, Inc. d/b/a Momper Insulation
Ind. Ct. App. · 2013 · confidence medium
Lifeline’s failure to submit a transcript of the jury trial is in contravention of Indiana Appellate Rule 9(F)(5), which provides that an appellant’s Notice of Appeal shall designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal.” Appellate Rule 9(F)(5) further provides that, “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.” Our Indiana Supreme Court has addressed a…
discussed Cited as authority (rule) Lysa Wefler v. Mark Wefler
Ind. Ct. App. · 2013 · confidence medium
Pursuant to Indiana Appellate Rule 9(F)(5), a Notice of Appeal shall designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal.” App. R. 9(F)(5) further states that, “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.” “‘Although not fatal to the appeal, failure to include a transcript works as a waiver of any specifications of error which depend upon evidence.’” In …
discussed Cited as authority (rule) BCC Products, Inc., and Roger Brunette, Jr. v. Roger Brunette, Sr., and Pauline Brunette
Ind. Ct. App. · 2012 · confidence medium
Our Indiana Supreme Court has addressed a party’s failure to include a transcript on appeal when factual issues are presented and held “failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind. 1992)).
discussed Cited as authority (rule) Hamby v. Board of Zoning Appeals (2×) also: Cited "see"
Ind. Ct. App. · 2010 · confidence medium
Ind. Appellate Rule 9(F)(4) requires that "[the Notice of Appeal shall designate all portions of the Transcript necessary to present fairly and decide the issues on appeal." The Indiana Supreme Court has stated that the "failure to include a transcript works a waiver of any specifications of error which depend upon the evidence." In re Walker, 665 N.E.2d 586, 588 (Ind.1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind.1992), and discussing prior appellate rules).
discussed Cited as authority (rule) Herr v. Carter Lumber, Inc.
Ind. Ct. App. · 2008 · confidence medium
In Pabey , the Court cited In re Walker, 665 N.E.2d 586, 588 (Ind.1996), in which the appellants did not submit a transcript and argued that a transcript was unnecessary because there was no challenge to the trial court’s findings of fact and the appellate review entailed determining only whether the findings supported the judgment and whether the conclusions of law and the judgment were clearly erroneous based upon the findings. 665 N.E.2d at 588 .
discussed Cited as authority (rule) Center Townhouse Corp. v. City of Mishawaka
Ind. Ct. App. · 2008 · confidence medium
In In re Walker, 665 N.E.2d 586, 588 (Ind.1996), our Supreme Court noted that the “failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” Here, the City’s claimed error is that the evidence does not support the court’s determination that the bridge caused a taking.
discussed Cited as authority (rule) Bailey v. State Farm Mutual Automobile Insurance Co.
Ind. Ct. App. · 2008 · signal: cf. · confidence medium
Cf. In re Walker, 665 N.E.2d 586, 588 (Ind.1996) (recognizing the cost associated with preparing transcriptions, and clarifying that "[a]lthough not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.”).
examined Cited as authority (rule) Fields v. Conforti (4×) also: Cited "see"
Ind. Ct. App. · 2007 · confidence medium
The court also relied upon its opinion in In re Walker, 665 N.E.2d 586, 588 (Ind. 1996).
discussed Cited as authority (rule) Ziobron v. Crawford (2×)
Ind. Ct. App. · 1996 · confidence medium
In re the Visitation of Walker, 665 N.E.2d 586, 588 (Ind.1996).
discussed Cited "see" Matter of JLV, Jr. (2×)
Ind. Ct. App. · 1996 · signal: see · confidence high
See In re the Visitation of Walker, 665 N.E.2d 586 (Ind.1996); Chief Justice Randall T.
discussed Cited "see, e.g." Joseph C. Lehman v. Firstsource Advantage, LLC
Ind. Ct. App. · 2015 · signal: see also · confidence medium
See Fields v. Conforti, 868 N.E.2d 507, 511 (Ind. Ct. App. 2007); see also In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (stating “[a]lthough not fatal to an appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence”) (citation omitted).
Retrieving the full opinion text from the archive…
In Re the Visitation of Herschel WALKER and Laverne Walker With Jamie Lynn West, a Minor Child. Herschel WALKER and Laverne Walker, Appellants (Petitioners Below),
v.
Lynn WEST, Appellee (Respondent Below)
64S03-9602-CV-178.
Indiana Supreme Court.
May 28, 1996.
665 N.E.2d 586
1996 Ind. LEXIS 53
1996 WL 278249
Hugo E. Martz, Peter L. Boyles, Hugo E. Martz, P.C., Valparaiso, for Appellants., Gordon A. Etzler, Hoeppner, Wagner & Evans, Valparaiso, for Appellee.
Dickson, Shepard, Debruler, Sullivan, Selby.
Cited by 33 opinions  |  Published

ON PETITION TO TRANSFER

DICKSON, Justice.

This case is before us on a Petition to Transfer [1] from an order issued by the Court of Appeals dismissing an appeal of the trial court's denial of a Petition for Grandparent Visitation Rights.

The appellants, Herschel Walker and La-Verne Walker (the Walkers) are the paternal grandparents of Jamie Lynn West (Jamie). Jamie's mother, Lynn West, was married to John Walker and, following the dissolution of their marriage in 1989, was granted custody of Jamie. Lynn married Kendal West in 1991, and John Walker's parental rights were terminated in late 1992 in connection with proceedings resulting in Kendall's adoption of Jamie. The Walkers promptly thereafter filed a Petition for Court Ordered Grandparent Visitation pursuant to Indiana Code § 31-1-11.7-8, which provides:

(a) Visitation rights may be granted when the court determines that it is in the best interests of the child.
(b) In determining the best interests of the child under this section, the court may consider whether a grandparent has had, or has attempted to have, meaningful contact with the child.

Ind.Code §$ 31-1-11.7-8. Following the appointment of a guardian ad-litem, pre-hear-ing discovery, the Walkers' motion for findings, and an evidentiary hearing, the trial court entered judgment denying the petition for visitation. In commencing their appeal, the Walkers filed a praccipe directing that the Record of Proceedings contain the various proposed findings of fact filed on behalf of the Walkers, the Wests, and the guardian ad litem, and the findings, conclusions, order and judgment issued by the trial court. The Record was prepared and filed accordingly.

Jamie's mother and the court-appointed guardian ad-litem each filed a Motion to Dismiss the appeal because the appellants failed to include in the Record of Proceedings a transcript of the evidence. See Ind.Appellate Rule 7.2(A)(8). The appellees did not exercise their right to request "the transmission of some or all [of] the other parts of the record." See Ind.Appellate Rule 7.2(B). The Court of Appeals dismissed the appeal, and the grandparents thereafter filed a Motion to Reinstate, with a supporting memorandum acknowledging the duty of an appellant to present an adequate record for review but arguing that they had complied with Appellate Rule 7.2(B), which requires the exclusion of unnecessary documents from the record on appeal. The grandparents argued that the transeript of evidence was not needed to address the appellate claim presented, asserting that they accepted the findings of fact made by the trial court and were argu[*588] ing only that the trial court erred as a matter of law in ruling against them. The grandparents' claim on appeal is that the trial court impermissibly focused on their relationship with Jamie's mother, rather than on their relationship with Jamie. The Court of Appeals denied reinstatement, and the grandparents seek transfer.

The Walkers continue to urge that, because there is no challenge to the trial court's findings of fact, the appellate review entails determining only whether the findings support the judgment and whether the conclusions of law and the judgment are clearly erroneous based upon the findings.

When the trial court enters special findings of fact and conclusions of law pursuant to a motion by a party, this court employs a two-tiered standard of review: First, we must determine whether the findings support the judgment. The see-ond inquiry is whether the conclusions of law and [the] judgment are clearly erroneous based on the facts as found by the trial court. However, where, as here, neither party challenges the court's findings, the parties are bound by the findings of fact as being fully and correctly found by the trial court. Thus, our review is limited to the second inquiry, ie., whether the conclusions of law and judgment are clearly erroneous.

American Cyanamid Co. v. Stephen, 623 N.E.2d 1065, 1070 (Ind.Ct.App.1993) (citations omitted).

We grant transfer to encourage litigants and reviewing courts to employ efficient appeal procedures. This Court has recently visited this issue:

Generally, a transeript of the evidence and proceedings at trial must be included in the record for it to be deemed sufficient. Although not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.
Our experience tends to confirm that the expense of preparing transcriptions often runs in the hundreds or thousands of dollars....

Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind.1992) (citations omitted). Appellate Rule 7.2(B) directs that "[njeither party shall request parts of the record or a transcript of the proceedings which are not needed for the issues to be asserted on appeal." App.R. 7.2(B). As noted by the Court of Appeals in Jackson v. State, 643 N.E.2d 905, 906 (Ind.Ct.App.1994), denial of habeas corpus aff'd sub. nom. Jackson v. Duckworth, 79 F.3d 1150 (7th Cit.1996), the rules require an appellant to transmit "only those parts of the record that are necessary for review of the issues to be asserted upon appeal." Id.

To encourage litigants to utilize and reviewing courts to permit the utilization of procedures that minimize expense and administrative burdens for the parties and the court system, we grant transfer and address the issues presented by the grandparents' appeal from the trial court judgment. [2]

In their appeal, the grandparents contend that the trial court erred in basing its determination of the child's best interests upon their relationship with Jamie's mother, rather than upon their relationship with Jamie, and in failing to give proper consideration to its own finding that Jamie's mother was responsible for the loss of their grandparent-grandehild relationship with Jamie. The grandparents place substantial reliance upon Moses v. Cober, 641 N.E.2d 668 (Ind.Ct.App.1994), which held that the determination of a child's best interests in a grandparent visitation case must be based upon the relationship between the grandparents and the grandchild, not that between the grandparents and the custodial parent. Moses, 641 N.E.2d at 672. This view, however, was expressly rejected in Daugherty v. Ritter, 646 N.E.2d 66 (Ind.Ct.App.1995), which was approved and adopted by this Court in Daugherty v. Ritter, 652 N.E.2d 502 (Ind.1995).

[*589] Confronted with the diverging Moses and Daugherty Court of Appeals opinions concerning the denial of grandparent visitation rights, this Court quoted from the Court of Appeals opinion in Daugherty, expressly noting that a focus on the relationship between grandparent and grandchild "is the starting point, not the ending one, in the trial court's best interest analysis. The ultimate question is whether visitation in the face of family discord is in the child's best interest. That question can only be answered by looking at the totality of the cireumstances presented." Daugherty, 652 N.E.2d at 503 (quoting Daugherty, 646 N.E.2d at 68).

In its fifty-six findings of fact, the trial court noted the existence of the grandparents' pleasant home in Savannah, Georgia; their many positive personal attributes; the history of their relationship with Jamie's mother and Jamie; their numerous unsue-cessful attempts to communicate with and give gifts to Jamie; their having had no contact for the past six years with Jamie, age seven and a half at the time of the hearing, due in large part to the conduct of Jamie's mother; the major, recent changes in Jamie's life, including her mother's marriage to Kendal West and his adoption of Jamie; the birth of a baby sister; Jamie's good relationship with her adoptive grandparents; Jamie's academic and social performance at school; the risk that visitation by Jamie to the Walkers' home in Georgia could result in contact between Jamie and her natural father, John Walker, whose parental rights had been terminated; and the recommendation of the guardian ad-litem against the requested grandparent visitation.

Among its fifteen conclusions of law, the trial court noted that "the Grandparent's Visitation Act accepts the position that [in stepparent adoptions], certain biological ties are worthy of recognition, respect, and preservation," and that "grandparental influence upon a grandchild through visitation rights can be a precious component of successful child rearing." Record at 88. The trial court also observed the absence of any meaningful contact between Jamie and her grandparents since she was an infant and noted that the grandparents' attempts to have such a relationship "were not substantial under the circumstances." Id. The court concluded that a meaningful relationship between Jamie and the Walkers would require extensive counseling, initially traumatic to Jamie; that it would need the complete support and encouragement of her mother, which "will never be voluntarily given"; and that, in the event Jamie should visit the Walkers in Georgia, "contact with John Walker would occur." Record at 88. The trial court determined that "in light of all of the rather unique cireumstances of this case it is found that visitation between Jamie Lynn and the Walkers would not be in the child's best interests. The Walkers' petition should be denied." Record at 38.

The grandparents contend that, accepting the findings of fact, we should find that the trial court erred as a matter of law. We disagree. Applying the standard established in Daugherty, we find that the trial court's judgment is supported by its findings of fact.

Transfer is granted, the cause is reinstated for consideration of the appeal, and the judgment of the trial court is affirmed.

SHEPARD, C.J., and DeBRULER, SULLIVAN and SELBY, JJ., concur.
1

. Because this case involves the care of children, the Petition to Transfer in this case has been given expedited consideration in accordance with this Court's new policy. See Chief Justice Randall T. Shepard, State of the Judiciary Address to Indiana General Assembly (Jan. 17, 1996).

2

. It is clear, however, that the dismissal of an appeal is proper where an appellant fails to file a record demonstrating any of the errors alleged in the appeal. Although permitted to do so, a reviewing court is not required to order the transmission of omitted parts of the record. App.R. 7.2(B).