*1 require applicable statute to a result which positions medical of these because of her "might he not be fair." In so problems and at the time of trial had not doing, only he not reached a conclusion During year prior since 1980.3 worked against logic and effect of the cireum- only to trial her income was a a $172.00 stances, but also failed to exercise the dis security disability payment.4 month social We, granted by legislature. cretion The trial court that he concluded therefore, give remand to the trial court an ap could not award maintenance because opportunity to exercise his discretion with pellant perform sedentary could certain understanding flexibility a clearer jobs, such receptionist, job as of a a We, course, scope powers.5 and of his she had never held before and which dif imply any particular do not result is significantly previous posi fered from her warranted. Should the trial court deter requires tions. We believe the statute appellant's incapacity materially mine that realistically appraise trial court to self-supportive ability, may affects her spouse's employment opportunities, keep only inquir order maintenance after first degree the type mind both and of his resources, ing into Mr. Dillman's financial incapacity present experi and his skills and suggested as well as the other factors ability middle-aged ence. The of a delica Temple. dizziness, angina, tessen worker with MILLER, P.J., CONOVER, J., con- lung fainting chronic recurrent disease and curs. spells support recep to herself an office as highly speculative tionist is if not unrealis say

tic. This is not to that maintenance in this It

should have been awarded case. say require

is to that the statute does not deny trial court to maintenance because a GARRETT, Appellant, David A. spouse theoretically perform able performed. job she has never before inflexible; trial

statute is not so court's BLOOMINGTON, Indiana; CITY OF not limited. discretion is so Bloomington Department Police Dis Gaston; patcher Evelyn (1977), R. Richard 174 Ind. In Re Osborne 653, Hunter, Bloomington 599, App. 369 N.E.2d the third district Police Officer sup refused to affirm a child of this court #162; Pointer, Bloomington Alan K. 164; Wells, disregard E. port order where the trial court Police Officer # and Paul #202, Ap Bloomington pe of factors in the control Police Officer ed evidence listed ling statute. The court reasoned: llees. not affirm

To hold otherwise would No. 1-784A173. trial court hart v. Middleton provided by court discretion. refuse in the It would instead to exercise the discretion legislature. City 210-11. proper ^[265] exercise of its permit Ind. [514], Elk Rehearing Court of May First Appeals of Denied June District. 1985. Indiana, Ind.App. 369 N.E.2d at 658. In case, the trial court misconstrued the 4. Evidence was one tempted with Corporation 1983 and Appellant my age Ralph [sic] to find a $38,000 physical Dillman had worked for U.S. Steel indicated that without presented job, "they're in 1982. condition." years experience although that at the time of earned not and someone hiring she had at- $31,000 some- 5. On were not therefore, property relitigated. remand, distribution and challenged in this only The dissolution of the maintenance to reconsideration. award of appeal attorney issue marriage, is to fees are, *2 Bell traced the line

Indiana Garrett, apartment plaintiff- of David Meanwhile, appellant this case. apartment approximately returned to the a.m., 1:80 after left work. His room- *3 entertaining mate was some friends and they drinking. Dispatcher had been Ga- communicated the information ston from Bloomington to three officers of the Bell (defendants Wells, Department Police Hunter, Pointer) posi- The officers themselves outside the door of tioned Gar- apartment. rett's radioed Officer Wells dispatcher ring and instructed her to the time, open the line. At this the door back apartment opened by one of the occupants. telephone was in the offi- cers' view. David answered the Garrett Beck, Sallee, Beck & Kenwor- Robert W. phone. proceeded verbally to Garrett - thy, Bloomington, appellant. for Dispatcher The officers abuse Gaston. Stephen Ferguson, L. Ferguson, David L. door, proceeded through the and ar- Lloyd, Bloomington, Ferguson, Ferguson & charge on a misdemeanor of rested Garrett appellees. for making harrassing telephone call on the emergency line. He was searched and Judge. NEAL, placed in a detention cell for several hours. charge was later dismissed. THE STATEMENT OF CASE lawsuit, During the course of this de- pur- for the Two cases were consolidated officers moved for fendant one, pose appeal: City of this Garrett v. of as con- judgment, alleging the above facts al., grant of Bloomington, et involves the affidavits, depositions in tained various summary judgment defendant's motion for admissions. Garrett filed an answers to imprison- action for false arrest and an stating he did opposition affidavit in that ment; other, et City Bloomington, the emergency any calls to the 911 not make Garrett, City's petition concerns the al. v. line, anyone that he did not see or hear expended recovery attorney fees for the to the 911 apartment in his make a call defending the false arrest claim. emergency line. judgment affirm the in both cases. We granted Garrett's Initially, the trial court motion; then, after the summary judgment THE STATEMENT OF FACTS reconsider, filed a motion motion for 18th, 1981, granted court the officers' a call was received trial On June stating that in order to by summary judgment, emergency on the 911 line plain- for false Bloomington Department. The Dis- sustain an action Police proving that tiff has the burden (defendant Gaston), answered the patcher faith or unreason- open, rendering it defendants acted bad call and locked the line The call con- incapable of disconnection. constitu- ably their actions to be further that judge trial noted laughter produced by a tional. The sisted of maniacal by complete defense dispatch officers raised laughbox. mechanical When good reprimand stating their affidavit repeated attempts er's acting constitu- they were use faith believed by caller were answered the continued (sic) genuine is thus not tionally: "there laughbox, requested she Indiana Bell good origin to locate the of the call. either lacked issue that defendants or a basis. With either motion must be taken as true. Boswell v. basis, Lyon, faith or a reasonable the offi- 401 N.E.2d 735. judgment are entitled to as a matter of Garrett states that the law Indiana is (R. 154.) law." that: After the trial court rendered his deci- facially "When officers act with a valid facially pursuant claim, warrant or to a valid sion on the false arrest the officers moved, pursuant to IND.CODE 34-4-16.5- statute, even if the warrant is later Act, found to be defective or the statute later 19 of the Indiana Tort Claims payment attorney unconstitutional, of their fees declared to be grounds on the the claim was friv- officer cannot held liable for the false long olous, unreasonable, in the arrest so as he believes con- and in bad faith. The judge denied the motion. stitutionality statute or warrant faith thereon." and acted *4 brief, Appellant's page 6. ISSUES however, first, argument, His is two-fold: following on raises the issues case, he asserts in the instant there appeal, which we have restated: process, it was no valid was misdemeanor I. Did the trial court err when it arrest, alleged and the act occurred outside genuine of fact ex- found no issue officer; second, presence police the of a isted for trial? argues judge finding trial that the erred finding II. err in the Did the trial court proving that he had the burden of bad faith plead- plaintiff bore the burden of part police on the of the officers. ing proving subjective bad and part police faith on the of the offi- Ordinarily, police neither a officer made the misde- when private may person nor a make an arrest meanor arrest? without a warrant for a misdemeanor un presence. less it was committed his III. Did the trial court err in not award- Imprisonment, Section Am.Jur.2d False ing attorney fees? State, (1977) 98. v. 266 Ind. See Works issues to- We will discuss the first two police 362 N.E.2d 144. A officer gether. prob arrest without a warrant when he has able cause to believe the arrested is AND DISCUSSION DECISION committing attempting a mis or to commit presence. demeanor his IND.CODE 85- I, proof. II: Issues Burden of that the existence 83-1-1. "It is also clear is the Our standard of review probable of cause to arrest is determined as the trial must deter same court's-we upon of the basis collective information genuine material mine whether a issue of organiza known to the law enforcement moving party and the fact existed whether tion, and the observance of the misdemean- judgment as a matter of law. is entitled part informa of that collective Padilla, (1982) Ind.App., Johnson Ind., State, (1982) tion." Brown v. if it N.E.2d 393. "A fact is material N.E.2d 1109. action or a decisive of either relevant secondary City out, issue". Consolidated Here, point the of appellee as Cutshaw, (1983) Indianapolis commit fense harassment was presence dispatcher, of the who ted judg 856. A then had the phone locked the line and proceeding not be ment cannot and should apartment. The line traced to Garrett's Cuishaw, used as an trial. abbreviated information to weigh dispatcher relayed then supra. judge may The trial proceeding. evidence in In review officers, such were able to corrob other who at information their arrival propriety summary judgment, of a orate the observing Garrett apartment by the Garrett's alleged by party opposing the facts Indiana, Joseph phone verbally County, deputy abuse the and certain answer officials, dispatcher. county occurred in the The offense sheriffs and other with presence dispatcher part imprisonment, of the became false false and mali prosecution. Banish, of the collective information known cious supra, at 639. approval court cited with Bloomington Department. Banish from ar- Police Ray, Supreme Pierson v. wherein the U.S. rest was valid. Court held that the defense of contention, however, second Garrett's cause, probable which is available to gives greater pause. us He that the states action for common-law judge finding erred in that he had the imprisonment, false arrest and is also avail proving part burden of faith on the bad able to them an action under Sec. officers. Further, regard Id. at 641. to an action Recent Indiana decisions hold that prosecution, opposed for malicious as proof cause is absence actions, imprisonment false arrest and plaintiff's essential to the cause of action "probable court stated Banish (1984) Adams, for false arrest. Gomez is an essential element of case". (trans. denied); Ind.App., 462 N.E.2d 212 Id. City Fleming, South Bend v. (7th Cir.1974) King, Brubaker v. (trans. denied). Ind.App., 397 N.E.2d 1075 case, F.2d another Sec. 1983 the court Likewise, showing of lack of enlarged faith defense. necessary cause is for a successful suit for Pierson, Again, citing the Brubaker court *5 prosecution. Gomez, supra. malicious - Supreme stated that the U.S. Court ex Probable cause for arrest is demonstrated plained good how the two elements of faith by facts and circumstances known to the probable applied and cause were to be as a arresting officer would warrant a which jury standard: "if the found that the offi prudence of reasonable caution and reasonably good in faith that believing in that the accused had commit constitutional, the arrest then a verdict was committing ted or was a criminal offense. though for the officers would follow even Thus, Gomez, supra. plaintiff if the in a in the arrest was fact unconstitutional." action fails to false arrest demonstrate 557, Pierson, supra, 386 U.S. at 87 S.Ct. cause, probable if absence of or the record 1219, Brubaker, supra, at 536. cited probable a whole reflects cause for the as The Seventh Circuit went on to conclude: then the case must fail test, thus, "'The under See. 1983 is not inquiry a halt. and the comes to whether the arrest was constitutional is, however, There a line of cases and or whether it was made unconstitutional authority which holds that the existence of cause, probable or without but with cause in a false arrest case is an probable faith whether the officer believed pleaded defense must affirmative which probable that the arrest was made with See, proven by e.g., defendant. and and whether that belief was rea- (1967) 547, Ray, v. 386 U.S. Pierson sonable." 1218, 288; L.Ed.2d v. S.Ct. Banish Td. Locks, (7th Cir.1969) 414 F.2d 638. We find that no sound reason exists to distin In v. Unknown Named Bivens Six guish proof the burden of a false arrest Bureau Narcot Agents the Federal prosecution action from a malicious action. Cir.1972) 1339, ics, (2nd the court 456 F.2d compelling policy reasons for the set forth plaintiff Another difficult hurdle for the good faith standard: was created in certain federal cases which immunity, we "Having against ruled brought pursuant had as their basis actions of the fact U.S.C., must not be unmindful provision to 42 Sec. Agents, whose these FBI and Narcotics Banish, Rights along federal Civil Act. (see danger concur claim, are in constant plaintiff also lives with See. 1983 Steward, defendants, ring opinion in v. charged the sheriff of St. United States (2d Cir.1971)) per 451 F.2d ny charges. proof, The burden how- indispensable pres form ever, functions plaintiff prove is on the way lack or reason- ervation of our American of life. officer's able cause to believe he They must not be left defenseless acting con- against every person the demands of stitutionally." manages escape who the toils of from (Our emphasis). Whitley, supra, at 685 must, however, the criminal law. We language Whitley has been reit against balance this consideration decisions, including erated in recent federal right of citizens to be free from unlawful (7th Cir.1984) Holmgreen, Guenther v. searches, arrests and arrests and F.2d the circuit wherein court stated searches in an carried out unreasonable plaintiff that a Sec. 1983 assumes the bur manner,. showing illegal den of that the arrest was -Le., without cause-and dissents, The numerous concurrences the arresting officer had no reasonable reversals, especially the last dec- good legality. faith belief in its Holm ade, expe- indicate that even learned and Mingey, green, supra, at 888. Llaguno See jurists difficulty rienced had in de- have Cir.1984) 1186; (7 739 F.2d Crowder th fining govern the rules that a determina- Lash, (7th Cir.1982) 687 F.2d 996. cause, tion of with or without a paralleling Indiana law this line of feder- As he warrant. [Citations omitted.] al cases commenced with Mitchell thicket, way tries to find his in this Drake, Ind.App., 360 N.E.2d police officer must not be held to act at heavily upon which relied Brubaker peril." his The most recent recital Bivens. of the law Bivens, supra, at 1347-48. contained, concerning false arrest as we Judge Lumbard's concurrence Bivens stated, Adams, supra. Gomez v. states: ap- "This second and lesser standard is A summary of the above author because, cases, propriate many federal cases, ities reflects that in false arrest *6 expected predict officers cannot be to plaintiff proof has the burden of judges frequently have con- what federal probable absence of cause. Probable cause deciding difficulty and about siderable upon to is arrest determined the basis of they frequently among differ which to the law collective information known contrary themselves. It would be Brown, organization. supra. enforcement public interest if federal officers were policeman A is not liable for false arrest probable cause standard as in held to simply because the innocence of the sus fail to act for many cases would Pierson, pect proved. supra. is later In guessing wrong." fear of stead, stringent proba a standard than less Id. at 1349. good po cause faith of the ble exists-the lice Although quoted extensive officer. The test of this standard is the decisions indicate, addressing the burden not whether the arrest was constitutional ly without issue, proof good that the faith of the unconstitutional, or whether it was made Circuit, defense, cause, probable a officer is the Seventh with or without but wheth er the faith that Seibel, (7th officer believed Whitley the later case of Cir.1980) quoting 613 F.2d after probable the arrest was made with language, above said.: The and that such belief was reasonable. then, proof, plaintiff "We must next consider whether the de- burden of is on the prove good faith or the the officer's lack of under the fendant's conduct is actionable to believe he was lack of reasonable cause applicable Section 1988 standard. The constitutionally. acting Whitley, su plaintiff argues that the defendant failed See pub This is sound prove good pra. faith belief of rule founded is, allaying intimidating policy; lic probable cause to him on the felo- arrest effect of civil against F.Supp. suits initiated concluded that when Bivens cases, many officers. may fail against actions federal officials are com prosecuted faith, reprisal menced and to act out in bad of the fear of the form of lawsuits. may defendants recover their reasonable expended. counsel fees "Where the de principal controversy in this case is provided fense is the defendants at the question of who bears the burden of expense States, of the United the United proof. demonstrated, As several Indiana States recover such counsel fees". proving decisions fix the burden of probable plaintiff Moon, supra, absence of cause on the at 1332.

in a false arrest case. We believe this "Having studied the briefs and law position correct, is every for not arrest cited, therein perceive the Court can no actionable, but becomes actionable when why government reason officials should made probable without cause. Hence the litigation be harassed bad faith at no "false" element of the false arrest cause of plaintiff. risk to the The meritless na- action necessarily evolves. It follows that ture of such a suit makes manifest that plaintiff prove something must more plaintiff's purpose was not to obtain a arrested; than the mere fact that he judgment merely but was to vex and law, accordance with the tenets of tort harass or to obtain If publicity. plain- prove impropriety must of his arrest. accomplish tiff can this at no risk to himself then there is no restraint rule, as shown person of bad faith who drain the above, stringent creates a less standard of attention, energy, govern- conduct will of demanded of the officer than that of constitutional Like ment officials at little or him- cause. no cost to cause, though, constitutional great expense self but at and loss to the arrest is not actionable unless made in body politic." bad

faith or with an unreasonable belief in the Td. constitutionality of one's actions. We strong language We do not believe that the agree reasoning with the Whitley applies cited above to the case at hand. place

the recent Indiana cases which permits IND.CODE 34-4-16.5-19 the trial plaintiff. burden on the discretion, judge, within his to award attor- ney fees if he finds the claim to Attorney III. Fees. out, groundless. points As Garrett IND.CODE 34-4-16.5-19 states Judge initially granted plaintiff's Kellams part: summary judgment motion and then re- any brought against govern- "In action time. versed such decision a later Obvi- *7 tort, entity in may mental the court allow posi- ously the trial court found Garrett's attorney's part fees as of the costs to the merit, temporari- tion to have some at least governmental entity prevailing as de- ly. judge's We will not the trial disturb fendant, plaintiff: if it finds that attorney pursu- decision not to fees award (1) brought the action on a claim which provision a of Indiana Tort ant frivolous, unreasonable, ground- or Claims Act. less; reasons, foregoing judg- For the litigate continued to the action af- ments in both causes of action are af- clearly ter claim became firmed. frivolous, unreasonable, groundless; or

or Judgments affirmed.

(8) litigated its action in bad faith. interpreted No Indiana decisions have RATLIFF, P.J., opinion. dissents with statute; however, above a federal district court, Smith, (E.D.Va.1981) ROBERTSON, J., concurs. Moon v. ing

DISSENTING OPINION officer are factual determinations for the trier to make from a consideration of RATLIFF, Presiding Judge, dissenting. all the evidence. Such Gomez. determina My disagreement majority opin- with the tion is one upon not to be made motion for First, ion is two-fold. the case was decided summary judgment. Further, the reason on summary judgment upon motion for an depends able belief of the officer upon an disposi- issue not susceptible summary application of the prudent reasonable and Second, tion. which forms the arrest test, a appropriate matter not for basis for this action was warrantless determination summary judgment. on - - arrest for a misdemeanor not committed majority Doe. The judge notes the trial presence arresting within the officer. apparently upon by relied affidavits Courts must exercise caution consider arresting asserting they ing summary judgments par to ensure the acting were constitut right ties of their to a fair determination of ionally.1 important question Such an can genuine v. American Connell Un issues. self-serving be resolved state derwriters, (1983), Ind.App., Inc. Indeed, ments of the officers involved. Sportsmax, N.E.2d Vanco Inc. 1028; perhaps such affidavits should not have (1983), App., Ind. 448 N.E.2d 1198. Summa they may been considered since not have ry judgment appropriate is not to resolve presented any only admissible evidence but questions credibility weight of evi self-serving declarations and conclusions of conflicting dence or inferences which the affiants. See Indiana Rules of Proce undisputed be drawn from facts. Bell v. dure, 56(E); Auction, Trial Rule Interstate (1983), Ind., Corp. Northside Finance Inc. v. Central National Insurance N.E.2d 951. Neither can the (1983), Group, Ind.App., Inc. 448 N.E.2d judgment procedure be used as a miniature Therefore, view, my it was im disputes. to resolve factual Moll v. proper for the court to determine these (1981), Systems, South Central Inc. Solar vital on summary judgment. issues Noth Summary judg 419 N.E.2d 154. ing short of a full trial will suffice. generally appropriate ment is not where Next, the warrantless arrest for a misde man ap standard must be presents meanor problem. a serious It is (1969), plied. Ind.App. Doe v. Barnett erystal clear that an officer arrest for 542, 251 N.E.2d 688. Even were the court only misdemeanor without a warrant if non-moving party to surmise that the misdemeanor is committed in the offi trial, unlikely prevail grant would presence. cer's Indiana Code section 35- summary judgment would not be 33-1-1; (1977), 266 Ind. Works State proper. English Coal Co. Durcholz 144; Robinson v. State (1981), Ind.App., 422 N.E.2d trans. (1925), 891; 197Ind. 149N.E. Hart v. denied. (1924), State 195 Ind. 145 N.E. 492. Probable for arrest is demonstrat Here, the ed facts and circumstances known to the misdemeanor which Garrett was arrested was not committed in the arresting officer which would warrant arresting view of the officer. The arrest prudence man reasonable caution and believing that the accused had commit charge harass committing ted or was a crime. ment, 35-45-2-2, Gomez v. Indiana Code section *8 Adams, 212, laughing 462 N.E.2d based the box incident. trans. Thus, questions the denied. of the exist state, Record at 180. The in a somewhat argument, ence or says absence cause and the circuitous the officers were faith) (good present telephone reasonable belief of the arrest when Garrett was on the Although self-serving 1. the trial court referred to such affi- clear that the statements of the offi- the basis for establish- alone cannot form davits, I do not find them in the record on appeal. Consequently, the exact content of such ing their faith. Nevertheless, affidavits is unknown. it seems

97 dispatch charge. made remarks to the misdemeanor abusive Gill v. Montgomery (1954), 36, However, Ward & Co. 284 A.D. 129 N.Y. that was not the basis of the er. 288, by S.2d Neither was that call initiated 49 A.L.R.2d 1452. Other courts arrest. majority opinion relies Garrett. have taken a more position. moderate Ind., (1982), N.E.2d Brown State rule has been stated as follows: support its conclusion that "In a damages suit for for false arrest presence in offense was committed misdemeanor, for a plaintiff must Brown, supreme the officers. In our court prove that the arrest was made without police stated that a officer arrest for a authority. lawful part Good faith on the misdemeanor committed within his view arresting defense, of the officer is no but and that the observance of the misdemean- long cannot be found liable so as he part of the collective information has cause to believe a misde- organiza known to the law enforcement being meanor is pres- committed in his Brown, tion. 442 N.E.2d at 1115. But the ence when he makes the arrest." in significantly facts Brown are different Brown, (1971), from those this case. Meyers La.App., Edwards So.2d actually officer did observe the commission relayed of the misdemeanor and the infor Legal justification established, is under mation to another officer who made the law, Maryland if making an arrest for a arrest. No such facts exist here. All the misdemeanor, officer has reason dispatcher's knowledge was that she re grounds able to believe that conduct he has telephone ceived a call which someone observed amounts to a misdemeanor. placed laughing. recording box on the Thus, legal justification may only be found by transmitter and that a trace the tele person making where the the arrest has phone company revealed the call came from legal authority to do so. v. May Shaw phone. any Garrett's She did not observe (1970), Department D.C.App., Stores Co. place one and did not call know who 268 A.2d 607. Whitney See also State present at the phone.2 location of the (1978), Ind.App. ery This a far from Brown where one (where police trans. denied officer was not actually officer observed the commission of uniform, wearing badge, and not the offense and officer advised another driving police required car as statute then who made the arrest.3 making arrest, a traffic arrest was It has been said some authorities that unlawful and could be construed to consti a warrantless arrest for a misdemeanor not arrest). tute a false arresting committed within the view of the In Meyers, persons the officer observed justified officer cannot be on the basis of drinking place beer alleged good of the officer or that Sunday-a business on of the violation the officer had cause for believ closing Sunday law. The officer in Show ing the offense had committed. been plaintiff leaving saw the the store with §

Am.Jur.2d, Imprisonment, False packages paid. for which she had not (1982). view, According to one a warrant Thus, Shaw, Meyers both the arrest- less arrest for a misdemeanor is made at peril ing activity officers observed which created person making faith is no excuse if an innocent reasonable belief that a misdemeanor had person is arrested without a warrant on a been committed the officer's view. Here, merely proving originated

2. Evidence that a call filed an affidavit in which he assigned telephone specifically being present from a to defendant without denied when the al- showing leged harassing other evidence defendant had sole ac- call was made and denied mak- disputed by deposition cess to the use of that line or some reason or the call. This is making motivation for the call is insufficient raising friends, of one of Garrett's thus a factual support conviction for harassment. issue which could not have been resolved on (1981), Ind.App., summary judgment. Zinn v. State 424 N.E.2d 1058. *9 expressed in Adopting the view Shaw liability in order to for Meyers, avoid officers had to have ob-

false reasonably led them

served conduct which being

to believe a misdemeanor was com- least, very At

mitted within their view.

this involves a factual determination to be

made from a consideration of all the evi- application requires

dence and reason- standard, neither of de-

able which appropriate

terminations are

judgment. reasons, foregoing I

For all of the re-

spectfully dissent. AGENCY,

The HARVEST INSURANCE Life Insurance and the Harvest

INC. (Plaintiffs Appellants Company, below),

Counter-defendants INSURANCE COMPA

INTER-OCEAN (Defendant NY, Appellee below).

Counter-claimant

No. 4-484A101. Indiana, Appeals of

Court of

Fourth District.

May

Rehearing Denied June