Shanholt v. State

Decision Date27 April 1983
Docket NumberNo. 3-582A106,3-582A106
Citation448 N.E.2d 308
PartiesJanet SHANHOLT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender of Ind., M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Presiding Judge.

Janet Shanholt was convicted by a jury of child confinement, a class D felony, pursuant to Ind.Code Sec. 35-42-3-3 (Burns 1982 Supp.) and received a sentence of four years. In appealing her conviction, Shanholt presents ten issues for review.

(1) whether the order that served as a basis for the allegation of unlawful conduct was void and whether, therefore, the trial court erred in denying Shanholt's motion based on Ind.Rules of Procedure, Trial Rule 50;

(2) whether the trial court erred in failing to reduce Shanholt's bond, thereby prejudicing her in the preparation of her case;

(3) whether the trial court erred in permitting evidence pertaining to homosexual activity;

(4) whether the trial court erred by denying Shanholt's motion to redact portions of State's Exhibit No. 1;

(5) whether the trial court erred by excluding the hypothetical question and answer propounded to Dr. Turkewitz;

(6) whether the trial court erred in permitting the testimony of Marjorie Cohen and Robert Suntheimer;

(7) whether the trial court erred in refusing Shanholt's tendered Instruction No. 6;

(8) whether the trial court permitted prosecutorial misconduct in the final argument;

(9) whether the trial court denied Shanholt the right of allocution before sentencing her; and

(10) whether the trial court imposed a manifestly unreasonable sentence.

Daniel and Janet Shanholt were married on March 8, 1969, and were divorced on September 15, 1976. Two children were born of the marriage, Dawn and Julie, who were 12 and 9 years old respectively at the time of the trial. Daniel was awarded custody of the girls but there was extensive litigation both before and after the award concerning custody and visitation.

The most recent modification on June 4, 1981, permitted Janet to remove the two daughters from Daniel's home for visitation on Saturdays and Sundays from 2:00 P.M. to 6:00 P.M. On the afternoon of June 13, 1981, Janet went to Daniel's home, accompanied by Karen Nadolny, took the girls, and left, driving a red van. Instead of returning the children at the time appointed by the decree, Janet and Karen traveled with the girls to Tucson, Arizona.

Dawn and Julie testified that they asked their mother to take them home, but she refused. Finally, once in Tucson, the girls told some neighbors of their plight. The FBI went to the motel where they were living and arrested Karen, then went to the bowling alley where Janet worked and arrested her. The children were taken to a convent for the night and were returned by airplane to their father, almost a month after they were taken.

Janet's defense was that she believed this was the only way to salvage her relationship with the children and to protect them from physical and psychological abuse by their father and his wife.

Daniel and his daughters rebutted this testimony. However, the girls and other witnesses testified that Janet and Karen had struck the girls. Julie testified that the bruises on her, which Janet alleged were made by Daniel, were actually drawn on her by Janet with magic markers.

Dawn suffers from an epileptic condition for which she is under constant medication. Yet Janet took none of Dawn's medicine with them when she took the children. Dawn further testified that while in their Arizona motel room she observed sexually suggestive activity between Janet and Karen.

Janet was charged by information as follows, omitting formal parts:

"The undersigned affiant swears that on or about the 13th day of June, 1981 at the County of Elkhart and State of Indiana, one JANET SHANHOLT and one KAREN NADOLNY, they and each of them, did, then and there unlawfully, knowingly and intentionally and feloniously, remove two minor children, namely: Dawn Shanholt and Julie Shanholt, by fraud and enticement from one place to another and did remove said children who are under the age of eighteen (18) years of age to a place outside of Indiana in violation of a child custody order of the Elkhart Superior Court No. 1 of Elkhart County, Indiana, under Cause Number 44368, and the said JANET SHANHOLT and KAREN NADOLNY, and each of them, did then commit the criminal offense of criminal confinement by picking up the children at 2:00 P.M. on Saturday, June 13, 1981, and they and each of them indicating that the children would be returned pursuant to the court order in the Elkhart Superior Court No. 1, Cause Number 44368, at 6:00 P.M. on June 14, 1981. Further, that JANET SHANHOLT and KAREN NADOLNY failed to return the children, thus causing the removal of the children from one place to another by fraud and enticement. Further, that JANET SHANHOLT and KAREN NADOLNY then moved the two children from the State of Indiana in violation of the child custody order previously mentioned. All of the above acts were initiated in Elkhart County, Indiana and are contrary to the form of Indiana Code section 35-42-3-3; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.

/s/______ Barbara Cutter"

Record at 5-6.

The statute under which Janet was convicted contains three sections.

"35-42-3-3. Criminal confinement.--

(a) A person who knowingly or intentionally:

(1) Confines another person without his consent;

(2) Removes another person, by fraud, enticement, force, or threat of force, from one place to another; or

(3) Removes another person, who is under eighteen years of age, to a place outside Indiana when the removal violates a child custody order of a court;

commits criminal confinement, a class D felony. However, the offense is a class C felony if the child is not his child, and a class B felony if it is committed while armed with a deadly weapon or results in serious bodily injury to another person.

(b) With respect to the violation of subdivision (a)(3) of this section, it may be considered as a mitigating circumstance if the accused person returned the other person to the custodial parent within seven days of the removal."

Janet contends that the custody order she is charged with violating was void because the special judge did not have jurisdiction and, therefore, the order could not form the basis for a criminal prosecution.

A.J. Spahn was appointed and qualified as special judge in the domestic relations cause on August 24, 1977 to hear and rule upon pending motions to modify custody and support. His final ruling on the motion to correct errors came on December 22, 1978. Upon entering an appealable order, the jurisdiction of a special judge is terminated. While the court has continuing jurisdiction in such cases, the special judge does not. It has therefore been said that any subsequent proceeding before him is void. State ex rel. Cannon v. Bitzegaio (1968), 250 Ind. 516, 237 N.E.2d 366; Heller v. Heller (1962), 133 Ind.App. 259, 181 N.E.2d 530.

In this instance, no objection was made by either party to Judge Spahn's jurisdiction over the modification proceedings until this criminal action arose. In fact, the parties stipulated to his jurisdiction. We are aware of cases which say that parties cannot, by agreement, confer judicial authority upon a person. See State, ex rel. Eggers v. Branaman (1932), 204 Ind. 238, 183 N.E. 653; Herbster v. The State (1881), 80 Ind. 484. We are also aware of cases which hold that where a judge acts under color of authority and the parties voluntarily go to trial without objection, an objection after the judgment is rendered is deemed to be too late to be of avail. See Moerecke v. Bryan (1915), 183 Ind. 591, 108 N.E. 948; Smurr v. The State (1886), 105 Ind. 125, 4 N.E. 445. Unlike lack of jurisdiction over the subject matter, lack of jurisdiction over a particular case may be waived unless a timely objection is made. State ex rel. Sacks Bros. Loan Co. v. DeBard (1978), 177 Ind.App. 679, 381 N.E.2d 119; Farley v. Farley (1973), 157 Ind.App. 385, 300 N.E.2d 375.

The answer to the dilemma lies with two cases decided by this Court in 1921: Michigan, etc., R. Co. v. S.J. Peabody Lumber Co. (1921), 76 Ind.App. 222, 131 N.E. 841 and Evans v. Rutherford (1921), 76 Ind.App. 366, 131 N.E. 55. In Michigan, etc. R. Co. this Court held:

"Appellee seeks to have the appeal in this cause dismissed on the ground that the record shows that the issues were settled before the regular judge of the Whitley Circuit Court, while the cause was tried before a special judge, without disclosing any change of venue, or the appointment of such special judge. These facts afford no ground for dismissal, as it is well settled that where the record is wholly silent as to the appointment of a special judge, a presumption will arise that it was duly made, and if his authority is not questioned until after a trial is had and a judgment rendered, all objections, based on the absence of an appointment in conformity with the statute, which might have been properly and possibly successfully made, if timely presented, will be deemed waived. Kennedy v. State (1876), 53 Ind. 542; Zonker v. Cowan (1882), 84 Ind. 395; Kenney v. Phillipy (1883), 91 Ind. 511; Schlungger v. State (1888), 113 Ind. 295, 15 N.E. 269; Bartley v. Phillips (1888), 114 Ind. 189, 16 N.E. 508; Lillie v. Trentman (1891), 130 Ind. 16, 29 N.E. 405; Larrance v. Lewis (1912), 51 Ind.App. 1, 98 N.E. 892; Pottlitzer v. Citizens Trust Co. (1915), 60 Ind.App. 45, 108 N.E. 36; Folger v. Barnard (1919), 73 Ind.App. 523, 125 N.E. 460." (Emphasis added.) 76 Ind.App. at 227, 131 N.E. at 843.

This was discussed a short time earlier in Evans:


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