Rodgers v. Rodgers, No. 75A04-8607-CV-00215

Docket NºNo. 75A04-8607-CV-00215
Citation503 N.E.2d 1255
Case DateFebruary 25, 1987
CourtCourt of Appeals of Indiana

Page 1255

503 N.E.2d 1255
Guy E. RODGERS, Appellant (Petitioner Below),
v.
Essie Faye RODGERS, Appellee (Respondent Below).
No. 75A04-8607-CV-00215.
Court of Appeals of Indiana,
Fourth District.
Feb. 25, 1987.
Rehearing Denied March 27, 1987.

Henry R. Hart, Knox, for appellant.

Page 1256

Fred R. Jones, Goodrich, Jones & Huff, Plymouth, for appellee.

CONOVER, Presiding Judge.

Petitioner-Appellant Guy Rodgers (Guy) appeals the Starke Circuit Court's disposition of property in a dissolution of marriage decree.

We affirm.

ISSUES

Guy presents four issues for our review. We consolidate and restate them as follows:

1. whether the appointment of a judge pro tempore was fundamental error;

2. whether the trial court erred by not disqualifying the Starke Circuit Court from continuing to hear this case; and

3. whether the trial court erred by failing to value the marital assets divided in the dissolution decree.

FACTS

On January 4, 1985, Guy petitioned the Starke Circuit Court for dissolution of his marriage to Essie Faye Rodgers (Essie). David P. Matsey (Matsey), Master Commissioner of the Starke Circuit Court, presided as Judge Pro Tempore of the court. A provisional hearing was held January 17, 1985. No court reporter was present, but at Essie's request, a tape recording was made of the proceedings. During this hearing, Guy was ordered to pay household expenses, and temporary maintenance of $20 per week.

On May 6, 1985, Guy's counsel, the Starke County prosecutor, filed a motion to withdraw as his attorney because of a potential conflict. Essie had made a complaint to the Starke County Sheriff's Department that Guy had burglarized the marital residence. On May 16, 1985, the Starke Circuit Court appointed a special prosecutor to pursue any complaints against Guy for the burglary and for an alleged perjury he committed during the provisional hearings.

Matsey later disqualified himself from further proceedings in the case. Matsey recommended Judge Marvin McLaughlin, the circuit judge for whom he was acting as pro tempore, take the case. Guy refused and requested a panel of three for striking. Matsey appointed the panel, the parties struck, and Douglas B. Morton qualified as special judge.

DISCUSSION AND DECISION

Our Supreme Court held in State v. Starke Circuit Court (1981), 275 Ind. 483, 417 N.E.2d 1115, Matsey as Master Commissioner of the Starke Circuit Court could not act with the authority of an elected judge. Under IND.CODE 33-4-1-74.3--33-4-1-74.9, Matsey was given the same judicial powers as the Starke Circuit Court Judge except as to juvenile and mandate powers.

Justice Pivarnik held the vesting of judicial powers in a master commissioner was unconstitutional. He said

When these various constitutional provisions are read together, a number of important principles emerge which are relevant to the case now before us. The State Constitution provides for the creation of a Supreme Court, Court of Appeals and Circuit Courts. The power to create additional courts of general jurisdiction lies in our legislature, and the legislature may establish such courts as it deems appropriate. See Elkhart County Board Comm. v. Albright, (1907) 168 Ind. 564, 81 N.E. 578; Shoultz v. McPheeters, (1881), 79 Ind. 373. The judges of such courts must be elected, or, if a vacancy occurs in the office of such judge, that vacancy shall be filled by appointment by the governor, until a successor is elected. See In re Petition for Appointment of Magistrates of Beech Grove, (1940), 216 Ind. 417, 24 N.E.2d 773; State ex rel. Gleason v. Gerdink, (1909) 173 Ind. 245, 90 N.E. 70.

Starke, supra, 417 N.E.2d at 1120.

Judicial powers cannot be vested in officers such as master commissioners appointed by judges of the courts. A master commissioner may have only non-judicial powers. Starke, at 1121; Shoultz, supra.

Page 1257

The court in Starke also distinguished between judicial and non-judicial acts, saying

"The power to hear causes and report facts or conclusions to the court for its judgment is not judicial within the meaning of the...

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19 practice notes
  • Salt Lake City v. Ohms, No. 930580
    • United States
    • Supreme Court of Utah
    • 18 Agosto 1994
    ...at hand is whether "[a]ppellant waived his right to challenge [the] selection" of a commissioner or special judge); Rodgers v. Rodgers, 503 N.E.2d 1255, 1257 (Ind.Ct.App.1987) ("The authority of one who acts as judge de facto under color of authority cannot be collaterally attacked.... Wher......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1989
    ...in his motion to correct error or on appeal when that issue was not raised in the trial court. E.g. Rodgers v. Rodgers (1987), Ind.App., 503 N.E.2d 1255, 1257, trans. denied; Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 118, n. 3; Thompson v. Daviess-Martin County REMC (1985), Ind.App.,......
  • Holm v. Smilowitz, No. 910594-CA
    • United States
    • Court of Appeals of Utah
    • 25 Septiembre 1992
    ...can not be conferred upon him." Id. at 1121 (quoting Shoultz v. McPheeters 79 Ind. 373, 376 (1881)); accord, Rodgers v. Rodgers, 503 N.E.2d 1255, 1256-57 (Ind.App.1987). Also, an Indiana Court of Appeals noted that a commissioner "acts as an instrumentality to inform and assist the court; o......
  • Ind. Ins. Co. v. Kopetsky, No. 49A02–1304–PL–340.
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Junio 2014
    ...an issue for the first time in his motion to correct errors or on appeal that was not raised in the trial court.” Rodgers v. Rodgers, 503 N.E.2d 1255, 1257 (Ind.Ct.App.1987), trans. denied. Indiana Insurance may not now raise this claim on direct appeal.B. Failure to Tender Defense of the U......
  • Request a trial to view additional results
19 cases
  • Salt Lake City v. Ohms, No. 930580
    • United States
    • Supreme Court of Utah
    • 18 Agosto 1994
    ...at hand is whether "[a]ppellant waived his right to challenge [the] selection" of a commissioner or special judge); Rodgers v. Rodgers, 503 N.E.2d 1255, 1257 (Ind.Ct.App.1987) ("The authority of one who acts as judge de facto under color of authority cannot be collaterally attacked.... Wher......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1989
    ...in his motion to correct error or on appeal when that issue was not raised in the trial court. E.g. Rodgers v. Rodgers (1987), Ind.App., 503 N.E.2d 1255, 1257, trans. denied; Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 118, n. 3; Thompson v. Daviess-Martin County REMC (1985), Ind.App.,......
  • Holm v. Smilowitz, No. 910594-CA
    • United States
    • Court of Appeals of Utah
    • 25 Septiembre 1992
    ...can not be conferred upon him." Id. at 1121 (quoting Shoultz v. McPheeters 79 Ind. 373, 376 (1881)); accord, Rodgers v. Rodgers, 503 N.E.2d 1255, 1256-57 (Ind.App.1987). Also, an Indiana Court of Appeals noted that a commissioner "acts as an instrumentality to inform and assist the court; o......
  • Ind. Ins. Co. v. Kopetsky, No. 49A02–1304–PL–340.
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Junio 2014
    ...an issue for the first time in his motion to correct errors or on appeal that was not raised in the trial court.” Rodgers v. Rodgers, 503 N.E.2d 1255, 1257 (Ind.Ct.App.1987), trans. denied. Indiana Insurance may not now raise this claim on direct appeal.B. Failure to Tender Defense of the U......
  • Request a trial to view additional results

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