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.

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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).

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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.

Court of Appeals of Indiana | Memorandum Decision 18A-JP-209 | April 8, 2019 Page 3 of 4 Riley, J., and Robb, J., concur. Court of Appeals of Indiana | Memorandum Decision 18A-JP-209 | April 8, 2019 Page 4 of 4