author: VAJODIK, Judge.

text:
    Derek ASKLAR and Pauline Asklar, Appellants-Plaintiffs, v. David GILB, Paul Garrett Smith d/b/a Ph. One Trucking, Empire Fire and Marine Insurance Co., d/b/a Zurich, Appellees-Defendants, Travelers Indemnity Company of America, Intervenor.
    No. 02A03-1204-CT-170.
    Court of Appeals of Indiana.
    Nov. 15, 2012.
    Rehearing Denied Jan. 25, 2013.

      Thomas A. Manges, Roby & Manges, Fort Wayne, IN, Attorney for Appellants Derek Asklar and Pauline Asklar.
    Diana C. Bauer, Carson Boxberger, LLP, Fort Wayne, IN, Attorney for Ap-pellee Empire Fire & Marine Insurance Company d/b/a Zurich.
   OPINION

VAJODIK, Judge.

Case Summary

Derek and Pauline Asklar (“the Ask-lars”) appeal the trial court’s decision to grant summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”). The Asklars contend that the trial court erred in holding that as a matter of law, Georgia law governs this dispute and that Empire’s uninsured/underin-sured motorist coverage limit was only $75,000. Finding that Indiana law should apply in this case, but that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm in part and reverse in part.

Facts and Procedural History

On July 30, 2008, Derek Asklar was employed by Premium of North Carolina, and his services were being leased by Wer-ner Transportation Services, Inc., a Georgia corporation. He was driving a semi-tractor trailer, owned by Schilli Leasing, an Indiana company, westbound on 1-68 in West Virginia. The tractor-trailer was registered, principally garaged, and licensed in Indiana. Appellant’s App. p. 199. While stopped at the bottom of an exit ramp, Derek’s tractor-trailer was hit from behind by another semi truck driven by David Gilb in the course of his employment with One Trucking. As a result of the collision, six other people were injured, Derek required medical treatment, including neck surgery, and he has been unable to work since. Gilb’s truck was insured by Northland Insurance Company and had a single liability limit of $1,000,000. Because of all of the claims against Gilb resulting from this collision, Derek also attempted to recover under Werner Transportation’s uninsured/underinsured (UM/UIM) motorist coverage.

Werner Transportation’s liability insurance was with Empire. It provided $5,000,000 in liability coverage, but only $75,000 in UM/UIM motorist coverage. Id. at 88. John Werner, in writing and on behalf of Werner Transportation, elected to reduce the amount of UM/UIM coverage under its policy to $75,000. Appellee’s App. p. 16-20.

The Asklars brought suit against Gilb, One Trucking, Northland Insurance Company, and Werner Transportation’s insurance company, Empire, alleging negligence and seeking compensation for his injuries. Empire was joined in the lawsuit to determine how much of its UM/UIM coverage was available to Derek to fully compensate him for his injuries. After filing the lawsuit, the Asklars filed a motion for partial summary judgment against Empire, alleging that the UM/UIM coverage limit should be $5,000,000 under Indiana law. Empire filed a memo in opposition and filed its own motion for summary judgment, alleging that Georgia law applied to this case and the UM/UIM coverage was in accordance with the law at $75,000. The trial court held a hearing on the cross motions for summary judgment and granted Empire’s motion and denied the Ask-lars’ motion.

The Asklars filed a motion to correct errors, and Empire filed a statement in opposition. The trial court held a hearing on the motion to correct errors and entered an order denying the motion.

The Asklars now appeal.

Discussion and Decision

There are three arguments raised on appeal: (1) whether the Asklars waived the argument that Georgia law does not apply by admitting in open court that it applied; (2) whether the trial court erred in granting summary judgment for Empire and finding that Georgia law applied; and (3) whether the trial court erred in granting summary judgment for Empire and finding its UM/UIM coverage limit to be $75,000.

I. Waiver

Empire contends that the Ask-lars have waived the argument that Georgia law does not apply to this case because his attorney admitted in open court that Georgia law did apply. A judicial admission is “a clear and unequivocal admission of fact, or a formal stipulation that concedes any element of a claim or defense ....” Bandini v. Bandini, 935 N.E.2d 253, 265 (Ind.Ct.App.2010) (emphases added).

In this case the following exchange took place between the trial court judge and the Asklars’ attorney during a discovery motion hearing:

THE COURT: It’s not a coverage issue. It’s not whether they gave notice and all of those contractual questions. The question is to the amount of the underinsured motorist and whether there was a proper waiver, correct?
MANGES: Correct
THE COURT: Under Georgia law?
MANGES: Yes, absolutely.

Appellee’s App. p. 47. Empire argues that this constitutes a judicial admission. We disagree.

The statement made by the Asklars’ attorney at the hearing was neither a factual admission nor an element of the claim being asserted; this was a statement dealing with the potential choice-of-law issue that may arise in this case. Because this statement does not fall under the definition of a judicial admission, we find that the Asklars’ attorney did not make a binding admission that Georgia law applies in this case, and the issue is therefore not waived for our review.

II. Summary Judgment

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch, 864 N.E.2d 1058, 1062 (Ind.2007).

A. Application of Georgia Law

Finding that the Asklars have not waived the argument that Georgia law does not apply, we now must address the issue of whether the trial court erred in granting summary judgment for Empire and finding that Georgia law applies. The Asklars contend that the trial court erred in granting summary judgment in favor of Empire, arguing that Indiana law is applicable in this situation.

Indiana Code section 9-25-4-l(b) deals with the financial requirements of Indiana drivers and provides in relevant part:

A person may not:
(1) register a motor vehicle;
5⅛ ⅜ ⅜ ⅜ ⅜ ⅜
in Indiana if financial responsibility is not in effect with respect to the motor vehicle under section 4 of this chapter, or the person is not otherwise insured in order to operate the motor vehicle.

Indiana Code section 27-7-5-2 addresses UM/UIM insurance and states that it applies to “any motor vehicle registered or principally garaged in this state.” While we recognize that Stonington Insurance Company v. Williams, 922 N.E.2d 660, 665 (Ind.Ct.App.2010), provides a five-factor analysis for choice-of-law issues, looking at these two statutes together, we find that in this case we need not reach this analysis because there is no choice-of-law issue. But see id. (court engaged in a five-factor analysis to determine which state had the most significant relationship to the parties and the transaction, considering: (a) the place of contracting; (b) the place of negotiation of the contract; (c) the place of performance; (d) the location of the subject matter of the contract; and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties). Any vehicle that is registered or principally garaged in Indiana must comply with Indiana insurance requirements, regardless of the fact that Werner Transportation is a Georgia corporation.

Since the tractor-trailer Derek was driving was registered, principally garaged, and licensed in Indiana, it therefore must meet the financial responsibility requirements set out in Indiana Code section 9-25-4-4 and the UM/UIM requirements set out in Indiana code section 27-7-5-2. Indiana law applies in this case, and the trial court erred in holding that the Georgia statute was the applicable law.

B. Amount of Coverage

Indiana Code section 9-25-4-4 provides, in relevant part, that “A motor vehicle liability policy under this article must contain the terms, conditions, and provisions required by statute and must be approved by the state insurance commissioner.” Ind.Code § 9-25-4-4(b).

One of those requirements is set forth in Indiana Code section 9-25-4-5 and determines the amount of minimum financial responsibility each driver must have. Another statutory requirement is UM/UIM insurance. This requirement is set forth in Indiana Code section 27-7-5-2, which states in relevant part:

(a) [T]he insurer shall make available, in each automobile liability or motor vehicle liability policy of insurance which is delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property to others arising from the ownership, maintenance, or use of a motor vehicle, or in a supplement to such a policy....

The amount of UM/UIM insurance must be “at least equal to the limits of liability specified in the bodily injury liability provisions of an insured’s policy, unless such coverages have been rejected in writing by the insured.” Id.

In this case, Empire’s bodily injury liability limit was $5,000,000, so that would be Werner Transportation’s required UM/ UIM liability coverage under Indiana law if it had not rejected such coverage. In order to reject UM/UIM coverage, the rejection must be in writing and specify:

(1) that the named insured is rejecting:
(A) the uninsured motorist coverage;
(B) the underinsured motorist coverage; or
(C) both the uninsured motorist coverage and the underinsured motorist coverage;
that would otherwise be provided under the policy; and
(2) the date on which the rejection is effective.

Id. Werner signed a form rejecting the full UM/UIM coverage under Werner Transportation’s Empire insurance policy each April before the policy period began on May of that year. Appellee’s App. p. 14-20. He elected to maintain coverage in the amount of $75,000 instead of $5,000,000, and he signed, dated and returned the form, indicating the time at which the rejection of the full policy was to be effective. These rejections were explicit and in accordance with Indiana Code section 27-7-5-2. They also follow the DePrizio rule, which indicates that if an insurance company wants to eliminate any or all UM/UIM coverage, it should either:

1) secure[ ] the written waiver of coverage required under the statute and include[ ] the waiver within the policy pri- or to the commencement of coverage; or
2) if [the insurance company wants] to remove UM/UIM coverage during the policy’s term, it should [] propose[] a modification to such effect and offer[ ] to reduce the premium to reflect the removed coverage. In either case, it would be clear that the existence or nonexistence of UM/UIM coverage was a negotiated term of the policy.

Liberty Mid. Fire Ins. Co. v. Beatty, 870 N.E.2d 546, 551 (Ind.Ct.App.2007). Here, the rejection of the UM/UIM coverage took place before the policy period began, allowing it to be considered a negotiated term of the policy, as required by Indiana case law.

We therefore find that the trial court did not err in granting summary judgment to Empire and finding that its UM/UIM coverage limit was $75,000.

Affirmed in part and reversed in part.

MATHIAS, J., and BARNES, J., concur.


source: Caselaw Access Project

author: RILEY, Judge. CRONE, Judge,

license: Public Domain

text:
    In re the Name Change of John William RESNOVER, Appellant-Petitioner, and In re the Name Change of John Arthur Herron, Appellant-Petitioner.
    No. 49A02-1205-MI-364.
    Court of Appeals of Indiana.
    Dec. 5, 2012.

      Crystal Francis, Tracy Pappas, Carrie Lynn, Indianapolis, IN, Attorneys for Appellants.

      Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General of Indiana, Elizabeth A. Murphy, Indiana Bureau of Motor Vehicles, Indianapolis, IN, Attorneys for the State of Indiana as Amicus Curiae in Support of Neither Party.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

In this consolidated case, Appellant-Petitioner, William Resnover (Resnover) and Appellant-Petitioner, John Arthur Herron (Herron), appeal the trial court’s denial of their petitions to change their names.

We reverse and remand for further proceedings.

ISSUE

Resnover and Herron raise two issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court erred when it required a valid driver’s license or valid state identification card as a prerequisite to grant the petition for name change pursuant to Ind.Code chapter 34-28-2.

FACTS AND PROCEDURAL HISTORY

Both appellants in this consolidated case cannot obtain a valid Indiana driver’s license due to discrepancies between the names commonly used in their everyday lives and the names listed on their birth certificates.

I. Resnover

Resnover was born on February 13, 1936 in Nashville, Tennessee, and is seventy-six years old. He was born to his mother, Johnnie Mae Cheatham, and his birth certificate lists his name as John Willie Cheatham. No father’s name is listed. Throughout his life, Resnover believed his name to be John William Resnover. In the past, state and federal agencies issued identification documents to him in that name, including an Indiana driver’s license, a social security card, and a pension.

On February 14, 2008, Resnover’s driver’s license expired. When he attempted to renew it some years later, the Bureau of Motor Vehicles (BMV) required him to present a birth certificate in compliance with State laws implementing federal real ID standards, 49 U.S.C. § 30301 et seq. Upon the receipt of his birth certificate, he discovered that the name he had been using during his entire life was different from the one listed on his birth certificate. Because his birth certificate listed his name as John Willie Cheatham, the BMV refused to issue him a current driver’s license or identification card.

On October 21, 2011, Resnover filed a petition to change his name in accordance with Ind.Code ch. 34-28-2 et seq. On February 6, 2012, the trial court conducted a hearing on Resnover’s petition. On April 4, 2012, the trial court denied the petition because “without a valid Indiana driver’s license or Indiana identification card, a petitioner who is at least 17 years of age is unable to obtain a change of name in Indiana.” (Appellant’s App. p. 4).

II. Herron

Herron was born on March 27, 1940 in Indianapolis, Indiana, and is seventy-two years of age. His birth certificate lists his name as “Infant Male Payne.” (Herron’s App. p. 12). His parents names are John and Margaret Payne. However, according to Herron, his parents were never married and he believes Payne was his mother’s maiden name, while his father’s last name was Herron. Herron’s siblings carry the name Herron. Throughout his life, Her-ron has consistently used John Arthur Herron as his legal name. He attended school under that name, obtained a social security card, and a selective service card identifying him as Herron. He never applied for a driver’s license or passport. Herron has a criminal record and was incarcerated under the name Herron.

Herron has been diagnosed with liver cancer and his course of treatment includes radiation or chemotherapy. In 2011, he received a limited monthly income consisting of social security benefits in the amount of $776 and must rely on Medicaid to pay his treatment. Because Herron believed that he could not apply for Medicaid -without a birth certificate that confirmed his name and because the application of certain public services requires a valid means of identification, Herron filed a petition for change of name on December 12, 2011. On March 5, 2012, the trial court conducted a hearing on Herron’s petition. On March 9, 2012, Herron filed a request to stay the ruling on his petition as well as a petition to establish a public record of time and place of birth pursuant to Ind. Code eh. 34-28-1 as an alternative to Ind. Code ch. 34-28-2 et seq. On April 10, 2012, the trial court denied Herron’s petition to change his name due to his failure to provide the court with a valid driver’s license or Indiana issued identification card. At the same time, the trial court denied Herron’s petition to establish a public record of the time and place of birth.

Both Resnover and Herron appealed. On June 18, 2012, we consolidated their appeals. On August 2, 2012, the State of Indiana filed as Amicus Curiae in support of neither party.

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

When the trial court enters findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Brinkmann v. Brinkmann, 772 N.E.2d 441, 444 (Ind.Ct.App.2002). The specific findings will not be set aside unless they are clearly erroneous, and we will affirm the general judgment on any legal theory supported by the evidence. Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind.Ct.App.1997), trans. denied. A finding is clearly erroneous when there are no facts or inferences drawn therefrom to support it. Id. at 76-77. In reviewing the trial court’s findings, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 77. Rather, we consider only the evidence and reasonable inferences drawn therefrom that support the findings. Id.

II. Petition for Change of Name

“The purpose of a name is to identify the person.” Schofield v. Jennings, 68 Ind. 232, 234 (1879). It has long been the standing law of our state that:

By the common law, ..., a full name consists of one Christian or given name, and one surname or patronymic. The two, using the Christian name first and the surname last, constitute the legal name of the person.... No person is bound to accept his patronymic as a surname, nor his Christian name as a given name, though the custom to do so is almost universal amongst English-speaking people, who have inherited the common law. A person may be known by any name in which he may contract, and in such name he may sue and be sued, and by such name may be criminally punished.

Id. at 234-35. Under common law, a person may lawfully change his or her name without resort to any legal proceedings where it does not interfere with the rights of others and is not done for a fraudulent purpose. Leone v. Commissioner, 933 N.E.2d 1244, 1252 (Ind.2010). A person effects a common-law change of name by usage or habit. Id. Therefore, the very nature of the name change means that it can be- effected without court approval. Such a system includes both the advantages of great flexibility and the disadvantage of the difficulty in verifying a name change, especially when the change occurs outside the traditional times in life, such as adoption, marriage, or divorce. Id.

In 1852, the Legislature instituted a new procedure for “an orderly record of the change of name in order to avoid future confusion.” 2 R.S. 1852, Ch. VII §§ I-V (Gavin and Hords, eds., 1862 ed.). In analyzing whether this legislative enactment of a common law practice signaled the abrogation of the common law, our supreme court decided in In re Hauptly, 262 Ind. 150, 312 N.E.2d 857, 859 (1974) that Indiana courts must grant a name change where no evidence of fraud exists but this does not mean that the State must recognize an informal common law name change. Thus, only after a court grants this imprimatur to the name change must a state agency recognize it. Leone, 933 N.E.2d at 1253. In other words, “under the common law only a statutorily authorized court order gives legal sanction to a name change.” Id. at 1254.

While the courts have unique power to certify a name change, Hoosiers still may refer to themselves by any name they like. Id. They may not, however, demand that government agencies begin using their new names without a court order. Id. This dual structure recognizes the reality that names serve multiple purposes, both private and public. Id. As our supreme court pointed out in Leone:

The modern tendency toward use of government-issued identification in both private and public settings may shrink the field governed by the common law, but both common law and statutory processes have long coexisted with respect to names, as they do in other fields of law. Statutes obliging citizens to engage in some formality when they invoke government processes by applying for benefits or identification cards neither obliterate common law usage nor are they driven by them.

Id. at 1255.

For both Resnover and Herron — and no doubt numerous others similarly situated — common law usage and Legislative enactment have reached a collision point once again. In 2010, the Indiana General Assembly issued Public Law 61 amending the procedures to effect a legal name change. The amendment imposed additional requirements purported to “help reduce the amount of identity theft from people who create new identities. It also would make is [sic] more difficult for illegal immigrants to create new identities, since the documentation to prove a person’s current identity would be much stricter.” (Press Release, Democratic Caucus, Cheatham Outlines Agenda for 2010 Legislative Session (Dec. 9, 2009)). Currently, the procedure to effect a name change involves the filing of a petition with the trial court:

Filing petition; procedure for change of name of minor
Sec. 2. (a) The petition described in section 1 of this chapter must:
(1) if applicable, include the information required by section 2.5 of this chapter;
(2) in the case of a petition filed by a person described in section 2.5 of this chapter, be subscribed and sworn to (or affirmed):
(A) under the penalties of perjury; and
(B) before a notary public or other person authorized to administer oaths; and
(3) be filed with the circuit court of the county in which the person resides.
(b) In the case of a parent or guardian who wishes to change the name of a minor child, the petition must be verified, and it must state in detail the reason the change is requested. In addition, except where a person’s consent is not required under [I.C. § ] 31-19-9, the written consent of a parent, or the written consent of the guardian if both parents are dead, must be filed with the petition.
(c) before a minor child’s name may be changed, the parents or guardian of the child must be served with a copy of the petition as required by the Indiana trial rules.

1.C. § 34-28-2-2 (emphasis added). The information which must be included in the petition is detailed in subsection 2.5 and specifies:

Contents of petition
Sec. 2.5. (a) if a person petitioning for a change of name under this chapter is at least seventeen (17) years of age, the person’s petition must include at least the following information:
(1) The person’s date of birth.
(2) The person’s current address; and
(A) residence address; and
(B) if different than the person’s residence address, mailing address.
(3) The person’s valid:
(A) Indiana driver’s license number; or
(B) Indiana identification card (as described in [I.C. ch.] 9-24-16) number.
(4) A list of all previous names used by the person.
(5) Proof that the person is a United States citizen.
(6) A statement concerning whether the person holds a valid United States passport.
(7) A description of all judgments of criminal conviction of a felony under the laws of any state or the United States that have been entered against the person.

I.C. § 34-28-2-2.5(a).

Thus, Indiana Code section 34-28-2-2 is divided into three main parts: part (a) relates to the filing procedure and contents for the petition to change a name; whereas parts (b) and (c) provide guidelines for the name change of a minor child — which are not applicable to the case before us. The third part of the name change procedure is enacted in subsection 2.5, which details the supporting information required to effect a name change, and which mandates, among other, the petitioner’s “Indiana driver’s license number or Indiana identification card [] number.” See I.C. § 34-28-2-2.5(a)(3).

When Resnover and Herron presented themselves at the BMV requesting, respectively, a driver’s license and an identification card in their common law names, they were turned down because the birth certificates used to prove their identities indicated a different legal name. Pursuant to BMV procedure, if the name on the document is different, the applicant must supply documentary proof of a name change, such as a marriage license or court order. See Ind. Admin. Code 7-l.l-3(b)(l)(K). After petitioning the court to change their legal names to coincide with their common law names, the trial court rejected Res-nover’s and Herron’s petitions because they failed to submit “a valid Indiana driver’s license or Indiana identification card,” citing I.C. § 84-28-2-2.5. (Resnover’s App p. 4; Herron’s App. p. 5).

As such, both Resnover and Herron are in a dilemma. Unable to change their birth certificates to their common law names means that they are unable to prove their identities to receive a driver’s license or identification card. Without a valid driver’s license or identity card even the most basic daily tasks present an insurmountable burden: they cannot purchase certain over-the-counter allergy medicine that contains ephedrine or pseu-doephedrine, purchase alcohol or tobacco, they cannot enter federal facilities or board a commercial airplane, and cannot receive free assistance with their income taxes. In order to provide a solution to this conundrum, we have to interpret Indiana Code section 84-28-2-2.5.

The interpretation of a statute is a legal question that is reviewed de novo. Sun Life Assur. Co. of Canada v. Ind. Dept. of Ins., 868 N.E.2d 50, 55 (Ind.Ct.App.2007), trans. denied. Statutory interpretation is the responsibility of the court and within the exclusive province of the judiciary. Id. The first and often the last step in interpreting a statute is to examine the language of the statute. Id. When confronted with an unambiguous statute, we do not apply any rules of statutory construction other than to give the words and phrases of the statute their plain, ordinary, and usual meaning. Id. We review the statute as a whole and presume the legislature intended a logical application of the language used in the statute, as to avoid unjust or absurd results. New Albany Historic Preservation Comm’n v. Bradford Realty, Inc., 965 N.E.2d 79, 88 (Ind.Ct.App.2012).

In its Amicus Curiae Brief, the State suggests that the plain wording of the statute merely requires a valid license number or identification number to support a petition for name change, not an actual license or identification card. We agree. Indiana Code section 34-28-2-2.5(a)(3) stipulates the inclusion in the petition for name change of “a valid Indiana driver’s license number or Indiana identification card number.” By requiring a valid driver’s license card or identification card, the trial court read into the statute a non-existing prerequisite that imposed an im-permissibly high burden on Resnover and Herron.

An identification card number is the “[ujnique identification number” that must be written on the front of an identification card issued under Indiana Code section 9-24-16-3(b)(5). Similarly, a driver’s license number is the “unique identifying number of the permit or license[.]” I.C. § 9-24-1 l-5(a)(7). Each number is exclusively associated with the individual to whom it was issued to and does not cease to be valid simply because the card itself has expired or is suspended. Once the number is assigned by the BMV to an individual, the number becomes associated with that person and remains valid for purposes of identification.

The practice of using a driver’s license number as identifying information is commonplace in Indiana’s statutes. See, e.g., I.C. § 3-7-13-13(a) (upon registering to vote, an individual must provide a driver’s license number); I.C. § 31 — 16—6—9(a)(1)(E) (parents must furnish their driver’s license numbers when modifying a child support order). Moreover, in Laker v. State, 869 N.E.2d 1216, 1219 (Ind.Ct.App.2007), we accepted the driver’s license number as “identifying information” leading to the establishment of the driver’s identity.

Recently, the United States District Court for the Southern District of Indiana in a factually similar case interpreted the statute to require that petitioner only provide a valid license number or identification card number. Worley v. Waddell, 2012 WL 4794654 (S.D.Ind.2012). In Wor-ley, the petitioner asserted federal due process arguments when the BMV refused to issue him an identification card in his common law name. Id. at 1. In discussing whether a state law remedy was available or was inadequate as part of Worley’s procedural due process claim, the district court explicitly took judicial notice of the proceedings in this consolidated case. Id. at 4.

A. Resnover

Interpreting the statute as we do today — requiring the submission of a driver’s license number or identity card number — will solve the dilemma Resnover found himself in. More importantly, during the court proceedings, Resnover had already presented the trial court with a copy of his expired driver’s license, which included his unique license number.

B. Herron

Although the State in its Amicus Curiae brief indicates that the record is ambivalent as to whether Herron had ever received a driver’s license or identification card, the trial court, in its Order, noted that Herron “never had an Indiana driving license or an identification card issued by the BMV.” (Herron’s App. p. 4). During the proceedings, Herron testified that the only identification he had was a social security card and an identification issued by the Department of Correction, both of which were lost when his billfold was stolen. Because Herron never applied for an Indiana driver’s license or identification card, he was never assigned a number that must be included in the petition when requesting the trial court for a change of name. Therefore, he will never be able to amend the name on his birth certificate, a mandatory prerequisite to establish the identity requirement for receiving an Indiana driver’s license or identification card.

To avoid the rigid requirements of I.C. § 34-28-2-2.5, Herron suggests that we interpret the statute in conjunction with its preceding section 2, which reads, in pertinent part,

Filing petition; procedure for change of name of minor
Sec. 2. (a) The petition described in section 1 of this chapter must:

(1) if applicable, include the information required by section 2.5 of this chapter; I.C. § 34-28-2-2 (emphasis added). Seizing on the “if applicable” language of I.C. § 34-28-2-2, Herron asserts that this language should be implicitly read in conjunction with I.C. § 34-28-2-2.5, which is a subpart of I.C. § 34-28-2-2. As such, he maintains that a petitioner, who is at least seventeen years of age, should only have to include his driver’s license number or identification card number with his petition for name change, if it is applicable. The State, as Amicus, opposes this interpretation, contending that it would “gut the statute and improperly make the requirements of subsection 2.5 merely discretionary.” (Amicus Br. p. 9).

The interrelationship between Indiana Code section 34-28-2-2 and its subsection 2.5, indicates that when filing a petition for name change, the petitioner must “if applicable, include the information required by section 2.5 of this chapter.” See I.C. § 34-28-2-2. Mindful to give all words included in the statute their plain and ordinary meaning, we cannot but interpret the “if applicable” language to indicate that if the required documentation enumerated in subsection 2.5 cannot be submitted to the court, the petitioner is relieved from the necessity to produce the documents. Construing the statute otherwise would negate the “if applicable” language in I.C. § 34-28-2-2.

Although Section 2.5 propones the mandatory language that the petition “shall” include these documents, we are mindful that “[w]hen the word ‘shall’ appears in a statute, it is construed as mandatory rather than directory unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning.” United Rural Elec. Membership Corp. v. Indiana & Michigan Elec. Co., 549 N.E.2d 1019, 1022 (Ind.1990). This is one of the rare instances where the Legislature intended a directory language. If we were to follow Amicus’ suggestion and mandate a driver’s license number or identification card number, it raises the question how a petitioner older than seventeen, having never received a driver’s license or identity card will be able to get his or her name changed on a birth certificate.

In sum, today we hold that to effect a name change, a petitioner must submit with the petition for a name change the documents requested in I.C. § 34-28-2-2.5 — including a driver’s license number or identification card number — if applicable. To be sure, although we have decided that the language of subsection 2.5 does not carry a mandate, but rather a directory intent, the trial court is still obliged to discern the absence of a fraudulent purpose prior to granting a petitioner’s name change. We remand this consolidated case to the trial court for further proceedings in accordance with this holding.

CONCLUSION

Based on the foregoing, we hold that the trial court trial court erred when it required a valid driver’s license or valid state identification card as a prerequisite to grant the petition for name change pursuant to Ind.Code chapter B4-28-2.

Reversed and remanded for further proceedings.

BAILEY, J. concurs.

CRONE, J. concurs in part and dissents in part with separate opinion.

CRONE, Judge,

concurring in part and dissenting in part.

I concur in the majority’s disposition of Resnover’s appeal. Indiana Code Section 84 — 28—2—2.5(a)(3) requires only a valid Indiana driver’s license number or Indiana identification card number, the former of which Resnover apparently has and thus may use to petition for a name change.

As for Herron, I respectfully disagree with the majority’s interpretation of “if applicable” in Indiana Code Section 34-28-2-2(a)(l) and therefore disagree with its conclusion that Herron is “relieved from the necessity to produce the documents” specified in Indiana Code Section 34-28-2-2.5. Op. at 676. Like the State, I believe that this interpretation “gut[s] the statute and improperly make[s] the requirements of subsection 2.5 merely discretionary.” Amicus Br. at 9.

“Statutes relating to the same general subject matter ‘are in pari materia [on the same subject] and should be construed together so as to produce a harmonious statutory scheme.’ ” Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind.2009) (quoting Sanders v. State, 466 N.E.2d 424, 428 (Ind.1984)). “The legislature is presumed to have intended the language used in the statute to

be applied logically and not to bring about an unjust or absurd result.” Bd. of Comm’rs of Hendricks Cnty. v. Town of Plainfield, 909 N.E.2d 480, 489-90 (Ind.Ct.App.2009). In my view, a plain reading of both statutes indicates that the “if applicable” in Indiana Code Section 34-28-2-2(a) refers to the age requirement of Indiana Code Section 34-28-2-2.5(a) and not to the information required by that statute. In other words, if a person petitioning for a name change is at least seventeen years of age, then Indiana Code Section 34-28-2-2.5 is applicable, and therefore the petition “must” include all of the information required by that statute pursuant to both Indiana Code Section 34-28-2-2(a) and Indiana Code Section 34-28-2-2.5(a). And, absent any legislative indication to the contrary, “must” means “must.”

According to Indiana Code Section 34-28-2-2.5(a)(3), a petition for name change “must” include the person’s valid Indiana driver’s license number or Indiana identification card number. I respectfully disagree with the majority’s unsupported assertion that Herron “will never be able to amend the name on his birth certificate, a mandatory prerequisite to establish the identity for receiving an Indiana driver’s license or identification card.” Op. at 675. The State suggests (and Herron himself does not deny) that he could use his birth certificate “to obtain legitimate documentation of residency and address” and correct the name on his social security card to reflect his birth certificate name (which, although unusual, is not alleged to be legally deficient in any way). Amicus Br. at 16. He could then use those documents to obtain an Indiana driver’s license or identification card bearing his birth certificate name and petition for a name change. If the petition is granted, he could obtain new official documents bearing his familiar name. Herron’s suggestion that this procedure would unduly burden any of his constitutional rights is unsupported by relevant legal authority and therefore unconvincing. In sum, then, I would affirm the denial of Herron’s petition for name change.

      . Herron is now receiving Medicaid as he was found eligible despite his inability to provide a birth certificate matching his name.

      . Pursuant to 140 Ind. Admin. Code 7-1.1-3(a), to obtain an Indiana driver's license or identification card, an applicant must submit documents to the BMV to prove his identity, lawful status in the United States, Indiana residency, and his social security number. An applicant’s identity can be established by an unexpired U.S. passport or passport card or by a certified birth certificate, and if applicable a certified amended birth certificate showing a change in name, date of birth, or gender. See 140 Admin. Code 7 — 1.1—3(b)(1)(A)— (B).

      . The State, as Amicus, proposes a potential solution for individuals similarly situated to Resnover and Herron by suggesting that they are not barred from obtaining state-issued identification, but only state-issued identification in their name of choice. The State recommends that Resnover obtains secondary documents in the name listed on his birth certificate — Cheatham—that would allow him to obtain a driver's license, also in the name of Cheatham. Resnover could then use this license to seek a name change to Resnover. If granted, Resnover could then change all of his identification documents back to his original common law name. While this procedure is feasible, the State's proposal is flawed. First, Herron's birth certificate reads "Infant Male” — surely, the State cannot advise Her-ron to seek documentation using his birth certificate’s name. Second, Indiana law has long recognized that an individual can change his name absent a fraudulent purpose. Clearly, the State's suggested method could be construed as perpetuating fraud if individuals are encouraged to obtain identification documents in names that they have never used.

      . Because we decide this consolidated case on statutory grounds, we do not need to reach Appellants' constitutional challenge to their right to vote. See Ind. Wholesale Wine & Liquor Co., Inc. v. State ex rel. Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 107 (Ind.1998).

      . The majority uses the word "shall,” which does not appear in either statute.

      . If Herron once had an Indiana identification card, as his equivocal testimony suggests, and if the number on that card was valid, then he could satisfy Indiana Code Section 34-28-2-2.5(a)(3).


author: BARTEAU, Senior Judge.

text:
    Connie YATES, Rick Yates, Jason Tibbs, and Pauline Tibbs, Appellants-Plaintiffs, v. Levi Wayne KEMP, Appellee-Defendant.
    No. 50A04-1204-CT-192.
    Court of Appeals of Indiana.
    Dec. 6, 2012.

      Brian M. Kubicki, Jones Obenchain, LLP, South Bend, IN, Attorney for Appellants.
    Jay T. Hirschauer, Hirschauer & Hir-schauer, Logansport, IN, Attorney for Ap-pellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Connie Yates, Richard Yates, Jason Tibbs, and Pauline Tibbs appeal the trial court’s grant of partial summary judgment to Levi Wayne Kemp. We reverse and remand.

ISSUE

The Yateses and Tibbses raise one issue, which we restate as: whether the trial court erred by granting Kemp’s motion for summary judgment as to their claims for nuisance.

FACTS AND PROCEDURAL HISTORY

The parties are neighbors on Thorn Road in rural Marshall County. The Yateses and Tibbses own contiguous properties on the west side of Thorn Road, and Kemp owns land across the road from them.

In 1962, Kemp built an earthen berm at the back of his property for use as a shooting range. At that time, there were no Marshall County ordinances, Marshall County zoning restrictions, or statewide laws in effect governing shooting ranges. The direction of fee at the range is oriented to the east, away from Kemp’s home, Thorn Road, and the Yateses’ and Tibbses’ properties. Kemp expanded the range in 1968, 1985, and 2006. At the time of the 2006 expansion, Marshall County had enacted a comprehensive zoning ordinance. In 2008, Kemp obtained the Marshall County Board of Zoning Appeals’ approval to continue to operate the shooting range, subject to certain conditions not at issue here. Kemp allows family and friends to use the range. In addition, police officers from nearby departments use the shooting range for training.

The Yateses purchased their property in 1995, and the Tibbses purchased their property in 2006. They object to the manner in which Kemp operates his shooting range, claiming that it hinders their enjoyment of their properties. Consequently, they filed suit against Kemp, claiming nuisance, negligence, infliction of emotional distress, and strict liability. Kemp filed a motion for summary judgment, and the Yateses and Tibbses filed a response. After a hearing, the trial court granted Kemp’s motion in part and denied it in part. Specifically, the trial court granted summary judgment to Kemp on the Yates-es’ and Tibbses’ claims for nuisance and infliction of emotional distress, granted summary judgment to Kemp as to any damage to the Yateses’ and Tibbses’ properties that were allegedly caused by stray bullets, and dismissed Jason Tibbs as a party-plaintiff with respect to his claim for damage to real property. The trial court denied Kemp’s motion as to the claims of negligence and strict liability. Subsequently, at the Yateses’ and Tibbses’ request, the trial court determined that its grant of summary judgment to Kemp on the nuisance claim was a final, appealable judgment. This appeal followed.

DISCUSSION AND DECISION

The Yateses and the Tibbses argue that the trial court erred by granting partial summary judgment to Kemp as to their claims for nuisance. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). As with a trial court, a reviewing court construes all factual inferences in favor of the nonmov-ing party and resolves all doubts as to the existence of a material issue against the moving party. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Where, as here, a trial court issues findings of fact on a motion for summary judgment, such findings aid our review but are not binding upon us. Allen v. First Nat’l Bank of Monterey, 845 N.E.2d 1082, 1084 (Ind.Ct.App.2006). The interpretation of a statute is a pure question of law and is reviewed under a de novo standard. Demming v. Underwood, 943 N.E.2d 878, 888 (Ind.Ct.App.2011), trans. denied.

The trial court determined that Kemp was not liable for his neighbors’ nuisance claims due to “I.C. § 14-22-31.5-1 et seq.” Appellants’ App. p. 11. Therefore, we must consider the principles of statutory construction. Our primary goal in applying a statute is to ascertain and give effect to the intent of the legislature. Demming, 943 N.E.2d at 888. The language of the statute itself is the best evidence of legislative intent, and we must give all words their plain and ordinary meaning unless otherwise indicated by statute. Id. If a statute contains clear and unambiguous language, it is not subject to judicial interpretation. Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind.Ct.App.2005). In construing a statutory provision, we will assume that the legislature did not enact a useless provision. Gray v. D & G, Inc., 938 N.E.2d 256, 259 (Ind.Ct.App.2010). Therefore, when possible, every word is to be given effect and no part of the statute is to be construed so as to be meaningless if it can be reconciled with the rest of the statute. Id. We view a statute within the context of an entire act, not in isolation. In re Visitation of A.R., 723 N.E.2d 476, 479 (Ind.Ct.App.2000).

The key statute here, Indiana Code section 14-22-31.5-6 (1996) (“section 6”), provides a safe harbor in limited circumstances for owners, operators, and users of shooting ranges against claims of noise pollution. It provides:

A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.

Id. The parties have not cited to any prior cases applying this statute, and we have not found any.

The Yateses and the Tibbses argue that Kemp is not entitled to the protection granted by section 6 because there were no applicable laws or ordinances in effect at the time he built and began operating his shooting range. Kemp responds that their argument is “nonsensical.” Appel-lee’s Br. p. 7. The plain language of the statute supports the Yateses’ and the Tibbses’ argument. Section 6 provides that in order for a shooting range to be immune from liability for noise pollution, a law or ordinance governing shooting ranges must have been in effect when the range in question was built or initially operated. Furthermore, the law or ordinance must apply to the range, and the range must be in compliance with the requirements of the law or ordinance. We are bound to carry out the legislature’s intent as expressed in the plain language of the statute. In this case, there is no dispute that there were no applicable local ordinances or state laws in effect when Kemp built his range in 1962. If we were to hold that Kemp is entitled to the protection afforded by section 6 even though he does not meet that statute’s conditions, we would effectively nullify those conditions. We may not construe portions of a statute to be meaningless. See Gray, 938 N.E.2d at 259.

Section 6 is part of the Indiana Range Protection Act (“the Act”), which is codified at Indiana Code sections 14-22-31.5-1 through -7. Kemp argues that if his shooting range is not immune from liability under section 6, then the entire Act is “meaningless.” Appellee’s Br. p. 7. To the contrary, our application of section 6’s plain language is logical in the context of the Act as a whole. According to a section of the Act, “[A] local unit of government may regulate the location, use, operation, safety, and construction of a shooting range.” Ind.Code § 14-22-31.5-5 (1996) (“section 5”). If a shooting range is built and operated in compliance with an applicable local ordinance after the ordinance is issued, then section 6 grants owners, operators, and users of the shooting range the benefit of a safe harbor against lawsuits alleging excessive noise.

Another provision of the Act, Indiana Code section 14-22-31.5-7 (1996) (“section 7”), states that the owner or operator of a shooting range that existed before July 1, 1996, may repair a building at the range as necessary to ensure public safety and the continued use of the building, even if the building does not comply with an ordinance adopted by a local unit of government. In addition, the owner or operator may also expand the membership of the shooting range regardless of limits imposed by a local ordinance. Id. Thus, section 7 offers protection to preexisting shooting ranges against subsequently-enacted ordinances in specific circumstances. Reading sections 5, 6, and 7 together, it is clear that the General Assembly knew how to indicate that a provision applies to a shooting range that was built before an ordinance was enacted. Thus, the Assembly could have extended the safe harbor provision in section 6 to all ranges, regardless of whether they were built before or after governing ordinances took effect. However, the Assembly chose not to take that step. As a result, based on the plain language of section 6 and its context within the Act as a whole, we conclude that Kemp is not shielded by section 6 from liability related to his neighbors’ nuisances claim arising from noise pollution.

Kemp argues that even if section 6 is inapplicable, he is still entitled to summary judgment on the nuisance claims because the Yateses and Tibbses failed to establish a dispute of material fact as to their claims. By statute, a nuisance is defined as:

[w]hatever is:
(1) injurious to health;
(2) indecent;
(3) offensive to the senses; or
(4)an obstruction to the free use of property;
so as essentially to interfere with the comfortable enjoyment of life or property....

Ind.Code § 32-30-6-6 (2002). Regarding the nature of nuisance, this Court has stated:

Nuisances may be either public or private. A public nuisance is one which affects an entire neighborhood or community, while a private nuisance affects only [a] single person or a determinate number of people. The essence of a private nuisance is the use of property to the detriment of the use and enjoyment of another’s property.
Both public and private nuisances are further subdivided into nuisances per se, or nuisances at law, and nuisances per accidens, or nuisances in fact. A nuisance per se, as the term implies, is that which is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist. Thus, for example, a house of prostitution and an obstruction that encroaches on the right-of-way of a public highway are nuisances per se. On the other hand, an otherwise lawful use may become a nuisance per accidens by virtue of the circumstances surrounding the use.
Logically, therefore, the determination that something is a nuisance per se is a question of law for the court, and the determination of whether that which is not in itself a nuisance is a nuisance in fact is a question for the jury or the judge as trier of fact. The latter determination is to be made by the trier of fact in light of all the surrounding facts and circumstances.

Wernke v. Halas, 600 N.E.2d 117, 120 (Ind.Ct.App.1992) (citations and quotations omitted). To recover in a nuisance action the complaining party need show only inconvenience, annoyance, or discomfort. Lesh v. Chandler, 944 N.E.2d 942, 951 (Ind.Ct.App.2011). Noise may be a nuisance if it is unreasonable in its degree, and reasonableness is a question of fact. Id.

The Yateses and the Tibbses have complained that Kemp is operating his shooting range to the detriment of their use and enjoyment of their property. Therefore, they are alleging a private nuisance. Furthermore, given that the range received conditional approval from the Marshall County Board of Zoning Appeals in 2008, we conclude that the range is an otherwise lawful use that may become a nuisance per accidens depending upon the circumstances surrounding the use. Thus, we must determine if the Yateses and the Tibbses have established a dispute of material fact as to whether Kemp has caused them to experience inconvenience, annoyance, or discomfort.

The Yateses and Tibbses tendered the following evidence. During some months, Kemp’s shooting range is in use on a daily basis, occasionally in the evening. When the police train at the range, they shoot for up to three hours. The volume of noise coming from Kemp’s shooting range frightens the Yateses’ horses, and Connie Yates refrains from riding or training her horses while Kemp’s range is in use because she fears that a loud gunshot would spook a horse, thereby endangering the rider. Furthermore, the Yateses would like to make their horses available for use as part of a riding program for at-risk youth, but they have not done so because Connie is concerned that Kemp’s shooting range poses a risk to persons riding her horses. In addition, Connie does not allow her granddaughter to play outside when Kemp’s range is in use.

The Tibbses also refrain from riding their horses while Kemp’s range is in use because the horses become frightened. On September 19, 2008, Jason Tibbs was riding his horse on his property when the horse was startled by shots fired at Kemp’s range, causing the horse to rear up, which resulted in Jason falling to the ground and sustaining injury. In addition, the volume of the noise from shooting at the range is so loud that the Tibbses sometimes stay indoors and close their windows when the range is in use.

Furthermore, the Yateses and Tibbses have observed that Kemp uses his shooting range at times calculated to interfere with their horse riding activities. All of this evidence is sufficient to establish a dispute of material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance, or discomfort. See Muehlman v. Keilman, 257 Ind. 100, 272 N.E.2d 591, 595-96 (Ind.1971) (finding sufficient evidence of nuisance where homeowners testified that their neighbor maliciously ran the engines of his diesel trucks at all times of the day, and the noise and fumes interfered with neighbors’ enjoyment of their home). Consequently, the trial court erred by granting summary judgment to Kemp on the Yates-es’ and Tibbses’ claims for nuisance.

CONCLUSION

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings.

Reversed and remanded.

VAIDIK, J., and CRONE, J., concur.

      . Kemp also asserts that the Yateses and Tibbses have waived this argument by failing to present it to the trial court. Based upon our review of the record, we disagree and address the argument on the merits.


author: MAY, Judge.

text:
    Terry L. BROWN, Appellant-Defendant, v. Tammy S. BROWN, Appellee-Plaintiff.
    No. 77A01-1204-PL-180.
    Court of Appeals of Indiana.
    Dec. 7, 2012.
    David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellant.
   OPINION

MAY, Judge.

Terry L. Brown (Terry) appeals a civil judgment in favor of his ex-wife, Tammy S. Brown (Tammy). Terry argues the trial court abused its discretion when it admitted evidence regarding criminal offenses he committed over twenty years ago. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

The Browns were married in 1994 and divorced in 2002. Approximately four months after their divorce was final, they began cohabiting and did so until October 27, 2010. On November 15, 2010, Tammy sued Terry, alleging he forged her name on a quitclaim deed to a property they owned jointly and alleging he battered her, which resulted in the rupture of her left breast implant.

Terry filed a motion in limine to exclude evidence he had been convicted in 1984 of rape and in 1985 of check deception. The court denied his motion, and Terry objected to the admission of the evidence regarding his convictions during the jury trial. The jury returned a verdict in favor of Tammy, awarding her $70,000.00 for the fraud and forgery, and $10,000.00 for the battery. Terry filed a motion to correct error, which the court denied.

DISCUSSION AND DECISION

We first note Tammy did not file an appellee’s brief. When an appellee does not submit a brief, we do not undertake the burden of developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind.Ct.App.2002). Instead, we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind.Ct.App.2006).

A trial court has broad discretion in ruling on a motion to correct error. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind.Ct.App.2001). We will reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the decision was against the logic and effect of the facts and circumstances before the court or if the court misapplied the law. Id.

A trial court also has broad discretion in ruling on the admissibility of evidence, and on review, we will disturb its ruling only on a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind.Ct.App.2000). When reviewing for abuse of discretion, we affirm if there is any evidence supporting the decision. Id.

Terry argues admitting evidence of his past convictions, both of which reflect offenses committed over twenty years ago, violates Indiana Evidence Rule 609, which states in relevant part:

(a) General Rule. For the purpose of attacking the credibility of a -witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

The party seeking to overcome the presumption such evidence should be excluded, here Tammy, must support her argument with “specific facts and circumstances upon which the trial court may base a finding of admissibility.” Hall v. State, 769 N.E.2d 250, 253 (Ind.Ct.App.2002).

At a hearing on Terry’s motion in li-mine to exclude the convictions from evidence, Tammy argued:

[W]e believe that these two [convictions of rape and check deception] are quite relevant in that this; [sic] number one: we are arguing that there is a forge [sic] and fraudery (sic) of a document. He has a history right here of a check deception. Both — what we’re alleging and what he was convicted of involved deception. Number two; [sic] we’re arguing that during a sexual act he battered her causing injury. He’s been convicted of rape, which involves a sexual act and of course, battery. So the two convictions that he has are quite relevant to the issues being brought forth in this matter.

(Tr. at 8.) In admitting the evidence, the trial court stated, “I believe [the admission of Terry’s convictions] goes to the weight rather than the admissibility.” (Id. at 10.) Finding the trial court’s admission of Terry’s stale convictions violated both sections of Evid. R. 609, we hold the trial court abused its discretion.

Evid. R. 609(a) requires evidence of a past conviction only be used “[f]or the purpose of attacking the credibility of a witness.” In the instant case, Tammy used the evidence to demonstrate Terry’s bad character and his propensity toward behavior similar to that which she was alleging as a basis for liability herein. Tammy mentioned Terry’s convictions twice during opening arguments, including this statement:

We believe the evidence will show by a preponderance of the evidence that [Terry], who was a paralegal while in prison for Rape and Theft and Deception, forged a document to gain financial access to a piece of property, waited until the opportunity was right to kick her out on the street so that now he and his new girlfriend could move in and live happily ever after.

(Tr. at 27.) During Tammy’s direct examination, she mentioned Terry’s convictions when testifying she met Terry at a prison:

[Counsel]: Okay. All right. And then, uh, you married [Terry] while he was in prison?
[Tammy]: Yes.
[Counsel]: You knew what he was in there for didn’t you?
[Tammy]: Yes.
[Counsel]: What was your understanding, what was he in prison for?
[Tammy]: For rape.
[Counsel]: And how old was the child— how old was the individual?
[Tammy]: Nine.
[Counsel]: Raped a nine-year-old?
[Tammy]: Yes.

(Id. at 69.) Terry’s conviction for rape was then mentioned during Tammy’s cross-examination:

[Counsel]: You also indicated that this rape conviction that Terry had served prison time was for a nine-year-old girl, where in fact she was twelve, wasn’t she?
[Tammy]: No the paper I has — that I have says that she’s nine. And there’s another one that says twelve.
[Counsel]: Okay so you really don’t know her age, you just know two different newspaper articles?
[Tammy]: No sir, it’s not a newspaper article. It is the actual copies from the courthouse when he went to trial.
[Counsel]: But one says nine and one says twelve?
[Tammy]: Yes sir.

(Id. at 128.)

In addition, Terry was asked about his rape conviction during direct examination:

[Counsel]: Terry, we’ve had quite [a] bit of testimony about how you and Tammy had met back in '92 and married in '94 down in Kentucky. And I believe you’ve been present in court and heard your ex-wife testify that you had raped a nine-year-old girl?
[Terry]: Yes.
[Counsel]: That true?
[Terry]: Not true that a [sic] raped a nine-year-old girl, but I heard her testify to that, yes.
[Counsel]: In fact the girl that you are alleged to have raped was twelve-years-old?
[Terry]: Correct.
[Counsel]: And you were sentenced to prison time for that?
[Terry]: Yes I was.
[Counsel]: And you served that time?
[Terry]: Eight years.
[Counsel]: And you got out on parole?
[Terry]: Uh, the Judge that sentenced me got me out of prison.
[Counsel]: In fact the Judge who sentenced you is no longer a Judge and has become somewhat of an advocate for you, hasn’t he?
[Terry]: Uh, he’s retired after, I think, thirty years on the bench and, uh, has pretty much always been an advocate for me, yes.
[Counsel]: In fact, there’s a pardon pending before the Governor in the State of Kentucky, isn’t there?
[Terry]: Yes.
[Counsel]: "Who was the person who put that forward for a pardon?
[Terry]: Uh, I was with the help of some of our local senators here in Indiana, [and] the Judge Fuqua in Kentucky.
[Counsel]: It was actually the Judge who presided over your trial and sentenced you that is helping push this pardon through, isn’t it?
[Terry]: Yes sir.

(Id. at 176-77.) On cross-examination, Tammy’s counsel asked Terry about the alleged pardon, and was later asked by the trial court to “move on,” (id. at 226), when Tammy’s counsel attempted to further question Terry regarding the rape conviction.

In light of the context in which Terry’s convictions were mentioned during trial, we conclude the evidence of his past convictions was not used for the narrow purpose permissible pursuant to Evid. R. 609(a) — to attack Terry’s credibility. The evidence could have reasonably led the jury to the forbidden inference that Terry’s past convictions, albeit over twenty years old, reflect his propensity to commit the acts for which Tammy alleged he should be held accountable herein. Further, as the evidence was not used for the limited purpose permitted by Evid. R. 609(a), the admission of that evidence was more prejudicial than probative, which violates the exception provided in Evid. R. 609(b). See Collins v. State, 966 N.E.2d 96, 106 (Ind.App.2012) (evidence of thirty year old misdemeanor battery arrest and charge was highly prejudicial because the admission thereof unfairly tipped the scales of justice against Collins). Accordingly, we reverse and remand.

Reversed and remanded.

NAJAM, J., and KIRSCH, J., concur.


author: BAILEY, Judge. RILEY, Judge,

text:
    In re the Matter of the GUARDIANSHIP OF L.R.T. and A.J.B., R.L. and P.L., (Guardians), Appellants-Petitioners, v. A.B. and R.B., (Parents), Appellees-Respondents.
    No. 39A04-1208-GU-398.
    Court of Appeals of Indiana.
    Dec. 10, 2012.
    Bryan Lee Ciyou, Lori B. Schmeltzer, Ciyou & Dixon, P.C., Indianapolis, IN, Attorneys for Appellants.
    R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Ap-pellees.
   OPINION

BAILEY, Judge.

Case Summary

R.L. and P.L. (“Guardians”) appeal an order terminating their guardianship of L.T. and A.J.B. (“the Children”) upon the motion of A.B. (“Mother”)- Guardians present the sole consolidated issue of whether the order is clearly erroneous. We affirm.

Facts and Procedural History

Mother, who is the granddaughter of Guardians, gave birth to L.T. in 2004. L.T.’s biological father has not been involved in her life. In 2006, Mother married R.B. (“Father”) and gave birth to A.J.B. A.J.B. was diagnosed with Downs Syndrome. He is high-functioning but has significant delays in verbal communication.

Mother and Father had difficulty maintaining a residence and employment sufficient to support the Children and Father’s child from another relationship. After some lengthy visits, L.T. and A.J.B. came to live with Guardians in September of 2007. The guardianship was formalized in November of 2007, so that Guardians could obtain medical insurance benefits for the Children. The Children thrived in Guardians’ care.

On November 9, 2011, Mother filed a motion to terminate the guardianship. The Guardians objected to the proposed termination. The trial court heard evidence on the contested termination at hearings conducted on July 5 and 19, 2012. On July 31, 2012, the trial court granted Mother’s petition and ordered that custody of the Children be transferred immediately. The trial court specifically found that Guardians had provided exemplary care for the Children, but also found that Mother and Father were currently able to provide for the Children’s needs.

Guardians appealed and sought an emergency stay of the order. This Court granted the stay and ordered the appellate filings to be expedited.

Discussion and Decision

Indiana Code Section 29-3-12-1 (c)(4) provides that the trial court may terminate any guardianship when the guardianship is no longer necessary. Guardians, who claimed that continuation of the guardianship was necessary because of AJ.B.’s special needs and his parents’ alleged continuation of financial instability, requested that the trial court enter findings and conclusions pursuant to Indiana Trial Rule 52.

We thus employ a two-tiered standard of review; we first determine whether the evidence supports the findings, and then consider whether the findings support the judgment. In re Guardianship of L.L., 745 N.E.2d 222, 227 (Ind.Ct.App.2001), trans. denied. The trial court’s findings and judgment will not be set aside unless they are clearly erroneous. Id. A judgment is clearly erroneous when it is unsupported by the conclusions drawn, and conclusions are clearly erroneous when they are not supported by findings of fact. Id. A judgment is also clearly erroneous when the trial court has applied the wrong legal standard to properly found facts. Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005). In reviewing the order being appealed, we will neither reweigh the evidence nor assess witness credibility. In re M.B. and P.B., 666 N.E.2d 73, 76 (Ind.Ct.App.1996), trans. denied. Rather, we will consider only the evidence that supports the trial court’s judgment together with all reasonable inferences to be drawn therefrom. Id.

Guardians do not allege that the trial court’s findings of fact are unsupported by the evidence. Rather, Guardians contend that they are de facto custodians and the trial court failed to employ the legal standard applicable to the established facts in this context. More particularly, Guardians argue that “presumably, with their de fac-to status, there would be no burden of proof as with an initial custody determination or Mother and Father/Step-Father would have to prove a substantial change in circumstances to have custody modified back to them.” Appellants’ Brief at 27. According to Guardians, “this appears to be an unanswered question of law.” Appellants’ Brief at 27. As best we can discern, Guardians maintain that the parents should bear the burden of showing the Children’s best interests are served by a custody modification.

Indiana law defines a “de facto custodian” as someone who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least six months if the child is less than three years of age or one year if the child is at least three years of age. Ind. Code § 31-9-2-35.5. “The apparent intent of the de facto custodian statute is to clarify that a third party may have standing in certain custody proceedings, and that it may be in a child’s best interests to be placed in that party’s custody.” In re K.I., 903 N.E.2d 453, 462 (Ind.2009) (citing In re L.L., 745 N.E.2d at 230).

In K.I., our Indiana Supreme Court described in detail the legal framework applicable to custody disputes between a natural parent and a third party. In particular, K.I., involved a parent’s action to take custody of his daughter and in so doing terminate her grandparents’ guardianship over her. First, the Court observed that custody modifications are reviewed for an abuse of discretion, with a preference for deference to our trial judges in family law matters. Id. at 457. The Court then recognized that, pursuant to Indiana Code section 31-14-13-6, child custody may not be modified unless the modification is in the best interests of the child, and there is a substantial change in one or more of the factors that the court may consider under section 31-14-13-2 and, if applicable, section 31-14-13-2.5. Id.

However, the Court in K.I. clearly reiterated that the non-parent must overcome the “important and strong presumption” that a child’s best interests are best served by placement with his or her natural parent. Id. at 459 (citing In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind.2002)). The burden is one of clear and convincing evidence proving that the child’s best interests are “substantially and significantly” served by the third-party placement. Id. The Court specifically rejected a “burden-shifting regime” placing the third party and the parent on a level playing field, as this would be inconsistent with long-standing State precedent. Id. at 460.

Although the party seeking a change of custody must persuade the trial court that modification is in the best interests of the child and there is a substantial change in one of the afore-mentioned statutory factors, “these are modest requirements where the party seeking to modify custody is the natural parent of a child who is in the custody of a third party.” Id. The “parent comes to the table with a strong presumption” and the burden imposed by the statutory requirements is “minimal.” Id. When the parent meets this “minimal burden,” the third party must prove by clear and convincing evidence that the child’s best interests are substantially and significantly served by placement with another person. Id. at 461 (citing B.H., 770 N.E.2d at 287). If the third party carries the burden, custody of the child remains in the third party. Id. at 461. “Otherwise, custody must be modified in favor of the child’s natural parent.” Id.

In short, in a custody dispute between a parent and a third party, even where the parent seeks to re-obtain custody, the burden of proof is always upon the third party. See id. As such, Guardians cannot prevail upon their suggestion that the trial court should have disregarded a parental presumption because Guardians have provided long-term care for the Children. The trial court’s order referenced the language of B.H. and there is no indication that an incorrect legal standard was employed.

The parties agree that the reason for the Children’s placement with Guardians was Mother’s and Father’s lack of stable housing and employment. After hearing evidence of current conditions, the trial court found that Father was employed in a factory making $16.63 per hour and Mother was employed at Subway, they had decided to buy a house that would provide suitable family accommodations, and Mother had made inquiries to address AJ.B.’s special educational needs. The trial court found that both Children could be expected to make the necessary adjustments. Guardians’ strenuous argument that Mother and Father have shown instability in the past and likely cannot adequately address AJ.B.’s special needs in the present is an invitation to reweigh the evidence. This Court is prohibited from reweighing the evidence. In re B.H., 770 N.E.2d at 288. Accordingly, we decline to do so.

Affirmed.

CRONE, J., concurs.

RILEY, J., dissents with separate opinion.

RILEY, Judge,

dissenting.

I respectfully disagree with the majority’s decision to affirm the trial court’s Order, terminating the guardianship over the minor children and ordering an immediate return to their parents. In affirming the termination of the existing guardianship held by a third party, the majority relies on our supreme court’s legal framework instituted in K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453 (Ind.2009). Discussing K.I., the majority reaches the overarching and simplistic conclusion that “in a custody dispute between a parent and a third party, even where the parent seeks to re-obtain custody, the burden of proof is always on the third party.” Op. p. 691 (emphasis added). I disagree with the majority’s reading of K.I.

The statutory standard for terminating a guardianship is provided in Indiana Code section 29-3-12-l(c). Under this statute, a guardianship may be terminated whenever it is no longer necessary. Ind.Code § 29-3-12-l(c)(4). Indiana courts, however, “have generally applied a more detailed test than required by the plain language of the [guardianship] statute.” Froelich v. Clark, 745 N.E.2d 222, 227 (Ind.Ct.App.2001), trans. denied. Instead, a standard similar to the one used in child custody modifications, which takes into account parental rights and the best interests of the child, is applied. Id.

In K.I., our supreme court developed a two-part test to determine whether a guardianship of a minor child held by a third party should be terminated in favor of a natural parent. See K.I., 903 N.E.2d at 460. First, a parent wishing to terminate a guardianship has the burden to show that doing so is in the child’s best interest and there is a substantial change in one or more of the child custody factors. See id. There is a “strong presumption that a child’s interests are best served by placement with the natural parent.” In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind.2002). That means that while the burden on the natural parent certainly exists, “these are modest requirements where the party seeking to modify custody is the natural parent of a child who is in the custody of a third party.” K.I., 903 N.E.2d at 460.

Once a natural parent overcomes this minimal burden, the burden shifts to the third party to show that the “best interests [of the child] are substantially and significantly served by placement with” the third party. B.H., 770 N.E.2d at 287. This prong can be satisfied by proving, with clear and convincing evidence, unfitness on the part of a parent, long acquiescence in the third party’s custody, or “voluntary relinquishment such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child.” Id. at 286 (quoting Hendrickson v. Binkley, 161 Ind.App. 388, 316 N.E.2d 376, 380 (1974), cert. denied 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98 (1975)). A trial court, however, is not limited to these three factors when determining whether the presumption in favor of the natural parent has been overcome. K.I., 903 N.E.2d at 459. If the third party fails to carry its burden, custody will be granted to the natural parent. Id. at 461.

In its analysis of the evidence, the trial court conflated both prongs of the test, squarely placing the evidentiary burden on the Guardians and merely applying the latter part — substantial and significant advantage. Because the trial court used an incorrect legal standard in terminating the minor children’s guardianship, I am convinced that employing the proper two-prong test, as proponed by our supreme court in K.I., reaches a different result.

Although the natural parent comes to the table with a strong presumption in his favor and with only a low burden to overcome — a substantial change in any one of the statutory factors included in I.C. § 31-14-13-2 & -2.5 — here, Mother and Father failed to meet this minimal threshold. Initially, the grandparents accepted guardianship over the minor children because Mother and Father “were being evicted from a home that they were attempting to buy and needed somewhere for the children to go.” (Appellant’s App. p. 11). The evidence reflects that at the filing of the petition to terminate the guardianship, Mother and Father’s situation is still marred by instability and financial insecurity. During the five years that the minor children have resided with the Guardians, Mother and Father have moved residences eight times, with an additional ninth move scheduled for shortly after the trial court’s hearing. Of those eight moves, the homes were located in three different school districts. Mother and Father have been evicted from homes, have been without heat, resulting in heating the residence during winter by a free standing kerosene unit, and had the water cut off. They have relied on the generosity of their church to pay an electricity bill. When Mother and Father were without housing, they found refuge in the overcrowded home of their own parents. Since 2005, Mother had held nine different jobs, and Father has held approximately twelve various positions, interspersed with bouts of unemployment.

Although Mother testified that their income is sufficient to provide for both children and the petition to terminate the guardianship is not born out of a need to get AJ.B.’s SSI’s check to survive, the evidence submitted to the trial court reflects otherwise. In a letter addressed to the trial court, Mother details her monthly budget indicating that, after paying for her and Father’s basic needs, only $185 per month would be left over to take care of the minor children — one of which has special needs. This is directly contradicted by Mother’s own testimony at trial where she testified to a remaining monthly amount of $565.

In other words, Mother and Father cannot establish a change in their way of life — let alone a substantial change — that necessitated the guardianship in the first place. See I.C. § 31-14-13-2.5(4). Therefore, they have not carried their minimal burden to terminate the guardianship and to be granted custody over their minor children.

Even assuming arguendo, that Mother and Father were successful in satisfying their burden, I must nevertheless conclude that the Guardians proved by clear and convincing evidence that the children’s best interest is substantially and significantly served by their current placement.

L.R.T. has resided with her grandparents since she was three years old — she is currently seven — and A.J.B. has been out of his parents’ custody since he was eight months old-he is currently five. During this time, Mother visited with the children a total of four times, each time focusing her attention on L.R.T. while almost completely ignoring A.J.B. The trial court noted that the Guardians have a parent-child relationship -with both children. Especially with respect to A.J.B., the trial court found that he is at an emotional risk because of his Down’s Syndrome and needs structure and support to continue functioning well and to develop up to his maximum potential. Any change in routine may produce a risk of deterioration of his functioning. Although Mother testified that she had “looked into issues involving the special needs of [A.J.B.],” she clarified this statement as meaning that she had spoken with her landlord whose daughter appears to be a special needs speech therapist. (Appellant’s App. p. 11). It is clear that Mother and Father do not have the ability or inclination to provide for A.J.B.’s extraordinary necessities. On the other hand, the Guardians cater to the children’s every need and accommodate A.J.B.’s therapy and very specialized care. They encourage both children to reach their best potential and nurture them every step of the way.

The long acquiescence of the children in their Guardians’ custody — to the point that the Guardians are the only parents A.J.B. remembers — has cultivated a strong bond, a deep mutual affection, and a safe and stable environment to mature. Uprooting the children without any notice and dropping them in the unstable and insecure lives of parents they barely know and an environment they are unfamiliar with, would seriously mar and endanger their future happiness and wellbeing. In fact, returning the minor children to Mother and Father’s care immediately after a long acquiescence in their grandparents custody, as decided by the trial court and affirmed by the majority, sentences them to a fate worse than a Child In Need of Services where a parent must initially adhere to a visitation schedule and a transition phase prior to full custody. Based on the evidence before me, I am convinced that the children’s best interest is substantially and significantly served by their current placement. The trial court’s decision to grant the petition to terminate guardianship was clearly erroneous and should be reversed.

      . Father has a child three months older than A.J.B. She lives with Father’s mother.

      . The non-exhaustive list of relevant factors includes (1) the age and sex of the child, (2) the wishes of the child's parents, (3) the wishes of the child, (4) the interaction and interrelationship of the child with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest, (5) the child’s adjustment to home, school, and community, (6) the mental and physical health of all individuals involved, (7) evidence of a pattern of domestic or family violence by either parent, and (8) evidence that the child has been cared for by a de facto custodian.
      Section 2.5 is applicable only if the court finds by clear and convincing evidence that the child has been cared for by a de facto custodian. If so, in addition to the factors listed in section 2, the court shall consider (1) the wishes of the child's de facto custodian, the extent to which the child has been cared for, nurtured, and supported by the de facto custodian, the intent of the child's parent in placing the child with the de facto custodian, and the circumstances under which the child was allowed to remain in the custody of the de facto custodian (including whether placement was to allow the parent to seek employment, work, or attend school). Ind. Code § 31-14-13-2.5(b). Pursuant to subsection (d), the court shall award custody of the child to the de facto custodian if the court determines that it is in the best interests of the child.

      . The majority also quotes to "[t]he [K.L] court specifically rejected a ‘burden-shifting regime’ placing the third party and the parent on a level playing field, as this would be inconsistent with long-standing State precedent.” Op. pp. 690-91 (quoting K.I., 903 N.E.2d at 460). However, this quote alludes to our supreme court's interpretation of the party's argument that the K.I. facts should be controlled by the distinction between the statutory factors required to obtain initial custody and those required for a subsequent custody modification. See K.I., 903 N.E.2d at 460. In its analysis of this claim, our supreme court rejected the argument as not dispositive to the facts at hand. See id. As such, the supreme court did not "specifically reject a burden-shifting regime” within the legal framework of the specific evidence before it. See op. pp. 690-91. Rather, to the contrary, the K.I. court explicitly imposed one, albeit "minimal” and "technical.” See K.I., 903 N.E.2d at 460.

      . These statutory factors are enumerated in Indiana Code sections 31-14-13-2 & -2.5.