In the Matter of the Paternity of Kierstyn Maria LaMar: Eric D. Smith v. Shanna M. Lamar (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 08 2019, 9:46 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Eric D. Smith Randall R. Shouse1
Indianapolis, Indiana Shouse & Langlois
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of April 8, 2019
Kierstyn Maria LaMar: Court of Appeals Case No.
18A-JP-209
Eric D. Smith,
Appeal from the
Appellant-Petitioner, Shelby Superior Court
v. The Honorable
R. Kent Apsley, Judge
The Honorable
Shanna M. LaMar, Jennifer K. Kinsley, Magistrate
Appellee-Respondent. Trial Court Cause No.
73D01-1606-JP-43
1
Although Randall R. Shouse filed an appearance as the attorney for Appellee Shanna M. LaMar, no brief
was filed on behalf of Appellee.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-209 | April 8, 2019 Page 1 of 4
Kirsch, Judge.
[1] Eric D. Smith (“Smith”) appeals, pro se, the trial court’s order that established
child support, custody, and visitation in his paternity action regarding his child
with Shanna M. LaMar (“LaMar”). Smith raises two issues for our review;
however, because we do not have a sufficient record from which we can
determine whether the trial court abused its discretion, we dismiss the appeal.
[2] The appellant bears the burden of presenting a complete record with respect to
the issues raised on appeal. Finke v. N. Ind. Public Serv. Co., 862 N.E.2d 266, 272
(Ind. Ct. App. 2006), trans. denied. Where the appellant fails to do so, we have
no basis to re-evaluate the trial court’s conclusion. Id. Indiana Appellate Rule
31 explains the procedure for assembling a record on appeal when no transcript
of the hearing is available.2 It requires a party to “prepare a verified statement
of the evidence from the best available sources, which may include the party’s
or the attorney’s recollection.” Ind. Appellate Rule 31(A). The party shall then
file a motion to certify the statement of evidence with the trial court. Id. The
rule provides for responses to the statement by the other party and then requires
a certification by the trial court. App. R. 31(B), (C). Compliance with this rule
sustains the appellant’s burden of presenting a complete record on appeal.
Graddick v. Graddick, 779 N.E.2d 1209, 1210 (Ind. Ct. App. 2002). When an
2
Our Supreme Court has previously held that unavailability of the transcript, for purposes of the rule,
includes the situation where “an indigent is unable to bear the costs of its preparation.” Campbell v. Criterion
Group, 605 N.E.2d 150, 160 (Ind. 1992).
Court of Appeals of Indiana | Memorandum Decision 18A-JP-209 | April 8, 2019 Page 2 of 4
appellant fails to comply with Appellate Rule 31, his appeal can be dismissed.
Id. (citing Gen. Collections, Inc. v. Ochoa, 546 N.E.2d 113, 115 (Ind. Ct. App.
1989)).
[3] Here, Smith’s request to order the trial court to prepare a transcript of the
proceedings was denied. Smith then prepared a verified statement of the
evidence and filed it with the trial court.3 Thereafter, the trial court, who heard
the evidence, did not certify Smith’s proposed statement of the evidence or file
an affidavit as to why there is a dispute to the statement of the evidence as
required under Appellate Rule 31(D). However, although the trial court did not
act upon Smith’s statement of the evidence, Smith took no further actions to
ensure the statement of the evidence was certified by the trial court. As Smith’s
arguments on appeal require review of the evidence and testimony presented at
the hearing, and he has not complied with Appellate Rule 31 by providing this
court with a transcript of the hearing or a certified statement of the evidence, we
find his issues waived. See Meisberger v. Bishop, 15 N.E.3d 653, 659 (Ind. Ct.
App. 2014) (finding issues waived where appellant failed to provide court with
either a transcript or a statement of evidence). We, therefore, must dismiss his
appeal.
[4] Dismissed.
3
We note that LaMar did file an objection to Smith’s statement of the evidence, contending that it was not
accurate as to the evidence presented at the hearing.
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Riley, J., and Robb, J., concur.
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