Opinion
No. 2-585-A-172.
February 10, 1987.
Appeal from the Hamilton Superior Court, The Honorable Judith S. Proffitt, Judge; Cause No. C83-275.
James R. Fisher, Ice, Miller, Donadio Ryan, Indianapolis, for appellant.
Frank E. Spencer, Indianapolis, for appellee.
GIVAN, C.J., and DeBRULER and PIVARNIK, JJ., vote to deny transfer without opinion.
DISSENT FROM DENIAL OF TRANSFER
Counsel for appellee has cited the memorandum decision in Eddings v. Eddings (1984), Ind. App., 465 N.E.2d 227, in which he represented the appellant, alleging that two pension funds were a part of the marital assets. One fund was a private fund which the husband owned and could withdraw. The other was a firefighter's pension fund from which the husband had the opportunity to withdraw $10,000 in exchange for an alteration of future benefits. The Court of Appeals held that neither of these was marital property.
While Rule 11(B)(2)(c), Ind.Rules of Appellate Procedure, provides that a party may seek transfer from the Court of Appeals on the grounds that the decision in the instant case conflicts with a prior opinion of the Court of Appeals, counsel for appellee earned a rebuke for calling attention to the conflict with Eddings. The Court of Appeals questioned counsel's professionalism, saying he had violated Rule 15(A)(3). That rule prohibits citation of memorandum decisions "before any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case."
To the extent that Rule 15(A)(3) prohibits an attorney from asking an appellate court to take cognizance of its prior rulings on the same question of law, I think the rule is due for revision.
That question aside, it is plain that two panels of the Court of Appeals have issued conflicting rulings on the same question of law. I regard the resolution of such conflicts as a key part of our responsibility to the practicing bar and to the people of Indiana.
DICKSON, J., joins in this dissent.