John Anthony Malan v. Melissa Malan (NFP)
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. FILED Oct 23 2008, 9:39 am CLERK of the supreme court, court of appeals and tax court APPELLANT PRO SE: JOHN ANTHONY MALAN Wenatchee, Washington IN THE COURT OF APPEALS OF INDIANA JOHN ANTHONY MALAN, Appellant-Petitioner, vs. MELISSA MALAN, Appellee-Respondent. ) ) ) ) ) ) ) ) ) No. 45A04-0803-CV-123 APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Elizabeth Tavitas, Judge Cause No. 45D03-0205-DR-1504 October 23, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BROWN, Judge John Anthony Malan appeals the trial court s judgment. We reproduce Malan s statement of the issues as follows: 1. Whether ineffectiveness of counsel causes clearly erroneous decision from trial court? 2. Whether this Court s Order of December 6, 2005 inre: 45A03-0501CV-00033 creates impossibility for trial court to accurately determine a bona fide child support and or bona fide arrearage ? 3. Whether trial court[ ]s abusive/destructive bench warrant indicates bad faith effort to resolve disputed issue of support amount and alleged arrearage ? Appellant s Brief at 4. We dismiss Malan s appeal. The relevant facts follow. This appeal represents Malan s third appeal in this action. On August 29, 2006, Malan, by counsel, filed a petition to modify child support. At a hearing on September 7, 2006, Malan failed to appear, and evidence was presented that Malan s child support arrearage exceeded $37,000. The trial court denied Malan s petition for modification and issued a bench warrant for Malan s arrest. On April 30, 2007, Malan filed another petition to modify child support. The trial court granted several continuances at Malan s request until, on September 6, 2007, Malan s attorney withdrew from the case. At a hearing on September 25, 2007, which Malan failed to attend,1 the trial court found that Malan s child support arrearage totaled $57,019 and reissued a bench warrant for Malan s arrest. Malan filed a motion to correct error but failed to attend the hearing on the motion, and the trial court denied it. 1 On the day of the hearing, the trial court s bailiff received a phone call from Mr. Malan indicating that he was on the east coast, couldn t make it [that day], and requested a continuance. Transcript at 9. The trial court found that Malan had notice of the hearing and denied his request for a continuance. On appeal, Malan argues that: [Malan s attorney] being fully informed that the man [2] had/has zero income and only one (1) child for the purposes of the so-called support/arrearage calculation proceeded as if the matter were an ordinary one with no issues being disputed. He breeched [sic] his fiduciary responsibility to the man by not making known to the Record that the man had/has zero income and only has one child. Consequently the trial court did not have available to it the complete facts when it declared its so-called arrearage on September 25, 2007 . . . . [Malan s attorney] was ineffective in his representing of the man . Appellant s Brief at 6-7.3 Malan also argues that repeated attempts to get the trial court to identify the form and substance of its alleged arrearage have fallen on deaf ears. Id. at 7. Finally, Malan argues that: Because of the trial court s documented past willful refusal to purge the man from contempt after it received credible evidence that the man was not guilty of willfully failing to provide support for his son the man lives daily in fear for his life, more so when he is sojourning on the land called Indiana. Cause no. 45C01-0602-P-0090 illustrates completely the lying, deceitful and treacherous nature of Appellee. Bank records and gas receipts very easily prove that the man was two states away when those phony allegations were made. The trial court[ ]s bench warrant along with another court s protective order severely hinder the man[ ]s desire to resolve the issue of support and have visitation with his son. It must therefore be stayed if meaningful and honest attempts at resolution can be made. Id. at 7-8. 2 Malan refers to himself as the man throughout his brief. 3 We note that Malan s attorney had withdrawn from his case before the hearing on September 25, 2007, and did not represent him at that hearing. 2 Pro se litigants must follow the rules of appellate procedure. Foster v. Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990). We note that Malan has failed to comply with a number of requirements set forth in our Rules of Appellate Procedure. In particular, his claims are not supported with citation to relevant authority or parts of the record relied upon or a brief statement of the procedural and substantive facts necessary for consideration of the issues presented, all in contravention of Appellate Rule 46(8)(a)(b). In addition, Appellate Rule 46(a) provides that [t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. As we have clarified: We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator. Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990). A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. Hebel v. Conrail, Inc., 475 N.E.2d 652, 659 (Ind. 1985). On review, we will not search the record to find a basis for a party s argument, id., nor will we search the authorities cited by a party in order to find legal support for its position. Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997). Malan has failed to advance his arguments with cogent reasoning or citations to relevant authority and the record. We find the argument section of his brief incoherent, and addressing his claims on the merits would require us to make and advance his arguments for him. Accordingly, we are compelled to dismiss Malan s appeal. See, e.g., Keller, 549 N.E.2d at 374 (dismissing 3 appeal because of appellant s failure to provide cogent argument with adequate citation of authority). Appeal dismissed. BAKER, C. J. and MATHIAS, J. concur 4
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