In Re The Paternity of C.J.A.: G.C. (Mother) v. T.A. (Father) , 3 N.E.3d 1020 ( 2014 )

FOR PUBLICATION
Jan 27 2014, 7:04 am
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DANIEL J. MOORE PAMELA J. HERMES
Laszynski & Moore Gambs, Mucker, & Bauman
Lafayette, Indiana Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF C.J.A.:
G. C. (Mother), )
)
Appellant, )
)
vs. ) No. 79A02-1302-JP-137
)
T.A. (Father), )
)
Appellee. )
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel, Judge
Cause No. 79C01-1002-JP-4
January 27, 2014
OPINION – FOR PUBLICATION
MATHIAS, Judge
T.A.’s (“Father”) paternity to C.A. was established in the Tippecanoe Circuit
Court. Father and G.C. (“Mother”) agreed to custody and parenting time, and the trial
court adopted their agreement in an order titled “Amended Second Provisional Order.”
However, approximately two years after the entry of that order, Father challenged
Mother’s custody of their child, C.A. while she continued to reside in South Carolina.
After a hearing, the trial court issued an order awarding Mother primary physical
custody of C.A., but only if she returned to Indiana. In the event she failed to establish
her residence in Indiana, Father would automatically have primary physical custody of
C.A. Mother appeals and raises several issues, which we consolidate and restate as:
I. Whether the trial court has authority to issue provisional orders in paternity
proceedings;
II. Whether the “Amended Second Provisional Order” was a provisional or final
custody order; and,
III. Whether the trial court erred when it prospectively ordered an automatic
change of custody in the event Mother failed to establish her residence in Indiana.
We reverse and remand for proceedings consistent with this opinion.
Facts and Procedural History
Mother was born and resided in South Carolina until her family relocated to West
Lafayette in 2006, after her father accepted a position at Purdue University. Mother and
Father met in high school and became involved in a romantic relationship. During their
relationship, Mother became pregnant. Father was actively involved in Mother’s prenatal
care and the birth of their child, C.A., who was born on December 12, 2008. Father
established his paternity to C.A. by affidavit one day after his birth.
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Father was involved in caring for C.A. and exercised parenting time with him.
Initially, his parenting time occurred at Mother’s parents’ home, but eventually, Father
was able to exercise parenting time at his own home. After Mother graduated from high
school, she enrolled at Ivy Tech and took classes part-time. While Mother was in class,
Father cared for C.A. at his workplace, which is a trucking business owned by Father’s
uncle.
The parties successfully co-parented C.A. until Mother decided that she wanted to
return to South Carolina to finish her college courses. When Father objected to Mother’s
relocation, she began to restrict his parenting time. Therefore, on February 2, 2010,
Father petitioned the trial court to enter an order on custody, child support, and parenting
time. The parties agreed to mediate the issues raised in Father’s petition, and on April 12,
2010, the trial court issued a “Provisional Order” approving the parties mediated
agreement concerning parenting time and child support.
Shortly thereafter, Mother again expressed her desire to relocate to South Carolina
and finish her college degree. Consequently, this case was set for trial in July 2010. But
on some date before the scheduled trial date, the parties reconciled. Therefore, at the
parties’ request, the trial date was vacated and an “Amended Second Provisional Order”
was entered, which provided in pertinent part:
3. The parties have reconciled and have agreed to move together to South
Carolina on or after August 1, 2010, with their son, where they will be
sharing physical custody of and the expenses for their child and the Mother
will be attending school. In light of the parties’ reconciliation, no Notice of
Intent to Move shall be required.
4. The parties shall share joint legal custody of [C.A.] and shall share
physical possession of [C.A.] while their reconciliation continues. In the
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event that the parties[‘] reconciliation fails and they no longer agree to a
shared physical custody parenting arrangement, then pending further court
order, Mother shall have primary physical possession of [C.A.] and Father
shall have the right to liberal parenting time with [C.A.], which shall at a
minimum be at least in accordance with the age appropriate parenting time
under the Guidelines, including overnights for regular parenting, shall
include over nights for multi-day holiday parenting time as provided in the
parties’ mediation agreement, and shall be subject to the general provisions
of the Guidelines, including with regard to the right to additional parenting
time if there is a need for a care provider.
***
6. The parties acknowledge and agree that the Court has continuing
jurisdiction over the issues of child custody, support and parenting time,
and that a future separation shall constitute a material change in
circumstances.
Appellant’s App. pp. 18-19.
Mother and C.A. moved to South Carolina in August 2010, and Father moved
shortly thereafter. Mother and Father’s relationship was tumultuous, and Father lived in
Indiana and South Carolina throughout the fall of 2010. In November 2010, the parties
determined that they no longer desired to reconcile. They agreed that Father would pay
$300 per month in child support to Mother, which Father later voluntarily increased to
$500 per month due to an increase in his income. They also agreed that C.A. would
spend approximately one week per month with Father in Indiana. Father generally bore
the entire burden for C.A.’s transportation between Indiana and South Carolina and the
associated travel expenses. Mother indicated that she was not willing to assist with
C.A.’s transportation for parenting time with Father.
Mother started school in South Carolina intending to complete a one-year program,
but changed her plans and enrolled in a two-year physical therapy assistant (“PTA”)
program. Mother completed that program and graduated on October 17, 2012. She also
4
obtained a PTA license in South Carolina. After Mother notified Father that she did not
plan to return to Indiana, a hearing date was set for November 29, 2012.
At the hearing, Mother testified that she had obtained employment in South
Carolina that would pay approximately $1000 per week. Father earns a similar income
working for his uncle’s trucking business. Father’s uncle allows Father flexibility in his
working hours to accommodate Father’s parenting time with C.A. Father’s uncle, aunt,
and cousins spend a significant amount of time with C.A. and live in the West Lafayette
area. Mother’s parents also still live in the West Lafayette area, but Mother’s mother
spends a significant amount of time in South Carolina. Her parents might return to South
Carolina after Mother’s father retires from Purdue University.
Father also hired an expert, Theresa Slayton, to perform a parenting assessment of
Father and C.A. Ms. Slayton observed that Father and C.A. have a close bond, and
Father provides a loving, nurturing environment for C.A. Ms. Slayton testified that
Father understands and is capable of meeting C.A.’s emotional and developmental needs.
Further, Ms. Slayton gave her opinion of the negative impact to the child when the child
is separated from the non-custodial parent by a long distance.
On January 7, 2012, the trial court issued the following pertinent findings and
conclusions:
23. Until several months after the [August 2010] move [to South Carolina],
Father understood Mother was pursuing her LPN degree and would finish
in a year, but Mother had applied for and ultimately enrolled in the physical
therapy assistant (“PTA”) program, which delayed her graduation by more
than a year.
24. The parties were able to make arrangements until March of 2012, when
Father was unable to get parenting time. Father proposed a schedule for the
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remainder of the year, but Mother would only schedule a month at a time.
There have been problems since March and the case was scheduled for trial
in contemplation of Mother’s expected graduation.
25. Mother graduated in October of 2012 and obtained a South Carolina
PTA license. She applied for jobs, mostly in South Carolina, but
considered relocation from Florence, including to North Carolina. She did
not apply or look for work in Indiana. Mother was able to complete her
degree without taking out loans due to the assistance she received from her
parents, money from an inheritance, and funds obtained from Pell Grants.
***
27. It is feasible for Mother to return to Indiana. She is qualified to seek
licensure here. Mother testified licensure could be completed in 3 months.
Mother also testified that if the Court did not allow permanent relocation,
she would return to Indiana and get a job here.
28. Mother’s mother may be moving to Florence and living with the
Mother.
29. Since shortly after [C.A.’s] birth, Father has worked at AMT Trucking,
except for the time in 2010 when reconciliation efforts were ongoing.
AMT is a family business owned by Father’s uncle (“Uncle”). Father’s
father died when he was two and Uncle has been a father figure for Father
since then. Father is considered part of Uncle’s family, as is [C.A.]. Uncle
supported Father’s reconciliation with Mother, but said he would rehire
Father if things did not work out.
***
31. It is far less feasible for Father to relocate to South Carolina than it is
for the Mother to return to Indiana.
32. The parties are capable of working together. Resolution of the
relocation issue and establishment of a parenting time schedule will
alleviate the parties’ major sources of conflict.
33. The parties agree on joint legal custody, and it is in [C.A.’s] best
interests.
34. Because the parties have been unable to agree about relocation, the
Court must decide this issue after considering all relevant factors under IC
31-14-13-2 and 31-17-2.2-1.
35. Both parties love [C.A.], have a close bond with him, have played a
significant role in his care, are in good health, and are fit parents. Mother
has been [C.A.’s] primary caregiver.
36. Both parties have provided a proper home and nurturing environment
for [C.A.], who is well-adjusted to spending time in each party’s home and
community. [C.A.] will not start kindergarten until the fall of 2014. He has
gone back and forth between the parties’ homes and changed
daycare/preschool providers in 2012 without problems.
***
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39. Although Father has been able to maintain a close bond with [C.A.]
over the past two years as a result of his extraordinary efforts, there have
been significant adverse impacts on [C.A.], including the reduction in
frequency of contact and the diminished role Father has played. The
adverse impacts on [C.A.] would increase greatly after he starts school if
permanent relocation is allowed. Ms. Slayton’s testimony indicates that
having only weekend parenting time would significantly change the nature
and quality of Father’s parenting time, especially if it occurs at a motel.
***
43. The distance between Florence and Lafayette creates a serious obstacle
to regular parenting time. Mother’s move to Florence to attend college has
resulted in [C.A.] spending hundreds of hours traveling over the past two
years and thousands of dollars in expenses.
44. If permanent relocation is allowed, thousands of dollars and significant
time each year will be spent, by the parties and [C.A.], on transportation for
parenting time. This will adversely impact the resources available to meet
[C.A.]’s other needs, including saving for college.
***
46. [C.A.] had no connection with South Carolina prior to the move. The
evidence failed to show he developed any close relationships there since.
Neither party has relatives there.
47. Mother’s relocation decision clearly was not made recently. It was
based in significant part on her long-standing dislike of Indiana and
personal preference and pre-pregnancy plans regarding college. Mother did
not articulate any reasons why her decision to attend school in Florence was
in [C.A.’s] best interests or why a permanent relocation would serve his
interests. She failed to explain any benefit to [C.A.] that would outweigh
the substantial adverse impacts permanent relocation would have on
[C.A.’s] relationship with Father and otherwise. Ms. Slayton indicated that
reasons unrelated to a child’s best interests are not a legitimate reason for a
move that would adversely affect a child’s relationship with the other
parent.
48. Mother accepted employment in South Carolina two weeks before trial
knowing full well that the Court had not yet ruled on relocation. She
presented no evidence showing inability to obtain employment in Indiana.
She admitted she could be licensed here and that she had not applied for
work here. She also testified that she would get a job in Indiana if
relocation is not allowed.
49. Father’s objections to relocation have been made in good faith and to
ensure he can maintain his close relationship with [C.A.] and be regularly
involved in his son’s life, which are legitimate reasons for his position.
50. The evidence indicates Mother fails to appreciate the importance of
[C.A.’s] relationship with Father and of Father’s continuing involvement in
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[C.A.’s] life. Mother has made unilateral decisions that have interfered
with and/or precluded Father from exercise[ing] [sic] parenting time in
accordance with the parties’ established practices and agreements. She has
also engaged in other conduct that has interfered with Father’s relationship
with [C.A.] and undermined his rights as [C.A.’s] joint legal custodian
under the provisional orders. Mother’s actions make it less likely that the
quality of [C.A.’s] close relationship with Father will be maintained if
relocation is allowed.
51. Given the circumstances, including [C.A.’s] age, that he has yet to start
school, the extended time he has spent in the Lafayette community and
Mother’s intention to return to Lafayette if permanent relocation is not
allowed, that [C.A.] has gone back and forth between his parent’s homes
and switched daycare/preschool providers with no apparent significant
problems, returning to Lafayette would not result in significant adverse
impact to [C.A.].
52. In the event that Mother would choose not [to] return to the Lafayette
area, Father is willing, able and ready to provide for [C.A.’s] care. He has
located a daycare and physician, has maintained a regular schedule for
[C.A.] during his parenting time, has engaged in school readiness activities
with [C.A.], and makes sure both parties’ families can spend time with
[C.A.].
53. There has been continuing and substantial change in circumstances
since entry of the Amended Order. It is not in [C.A.’s] best interest to
allow permanent relocation to Florence. It is in [C.A.’s] best interest to
return to and reside in Indiana.
Appellant’s App. pp. 68-74 (record citations omitted).
In its conclusions of law, the trial court stated that all “prior orders were []
provisional in nature. No final order has previously been entered on issues of custody,
parenting time, and relocation, and Mother is estopped from contending otherwise.” Id.
at 74. The court also concluded that both parties are fit, suitable parents to have custody
and care of C.A. and ordered them to share joint legal custody. The court also
determined:
5. Permanent relocation to South Carolina is not in [C.A.’s] best interests.
It is in [C.A.’s] best interests to return to and reside in Indiana and for
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Mother to provide his primary residence and Father to have liberal
parenting time.
6. In light of the unusual circumstances in this case, it is in [C.A.’s] best
interest that the Court’s order giving Mother “primary physical possession”
on a temporary basis be extended no later than March 31, 2013, so that
Mother has a reasonable opportunity to return to Indiana and obtain
employment here. Until such time as Mother returns her residence to
Indiana or March 31, 2013, which ever first occurs, Mother shall have
primary physical possession of [C.A.] and Father shall have liberal
parenting time. It shall consist of 8 to 10 days each month, including a
complete weekend without travel if reasonably possible, and regular
communications by telephone and/or Skype. Mother and Father shall each
be responsible for transporting the child 50% of the time, including all costs.
If they are unable to agree, Father will provide transportation at the
beginning of parenting time and Mother shall provide it at the end of the
period. Transportation can be provided by another responsible adult if
necessary.
***
8. The Court’s temporary award of primary physical possession to Mother
shall become a final order without the need for further hearing if Mother
restores her residence in Tippecanoe County on or before March 31, 2013.
In accordance with Indiana law, however, a final order remains subject to
the Court’s continuing jurisdiction. In the event the order becomes final,
Father shall have liberal parenting time with [C.A.], which shall consist of
two days a week from after preschool/school with an overnight and every
other weekend. . . .
9. If Mother fails to re-establish her residence in Indiana by March 31, 2013,
[C.A.’s] best interests would be served by and primary physical custody
shall be awarded to Father on April 1, 2013, without the need for further
hearing. In that event, Mother shall have parenting time in accordance with
Father’s plan for parenting time when distance is a factor as set forth in
Exhibit 9, including the provisions relating to transportation.
Appellant’s App. pp. 75-76. Mother now appeals.
Posture of the Appealed Order
Before we address Mother’s claimed errors, we observe that the appealed order
contains language that might lead to the conclusion that it is not a final judgment, but an
interlocutory order. “An interlocutory order is one made before a final hearing on the
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merits and requires something to be done or observed but does not determine the entire
controversy.” Bacon v. Bacon, 877 N.E.2d 801, 804 (Ind. Ct. App. 2007), trans. denied.
A final judgment disposes of all claims as to all parties. 1 See Ind. Appellate Rule 2(H);
see also Waldrip v. Waldrip, 976 N.E.2d 102, 109 (Ind. Ct. App. 2012) (stating “a final
judgment is one that disposes of all claims as to all parties, ending the case and leaving
nothing for future determination”).
In its order, the trial court resolved the issue of primary physical custody of C.A.,
although custody is dependent on Mother’s decision as to where she will reside. The
temporary award of custody expires “no later than March 31, 2013,” and the court ruled
that Mother will retain custody if she chooses to reside in Indiana. However, Father will
automatically obtain primary physical custody of C.A. on that date without any further
hearing if Mother remains in South Carolina. When read in its entirety, the order clearly
adjudicates custody and parenting time regarding C.A., and the trial court expressly states
that no further hearing is required. Importantly, absent appeal, the order resolves all
custody and parenting time issues unless and until one of the parties files a subsequent
motion to modify custody and/or parenting time. For these reasons, we conclude that the
order is a final judgment and address it accordingly.
Standard of Review
Father requested special findings of fact and conclusions thereon pursuant to Trial
Rule 52(A). “In reviewing findings made pursuant to Rule 52, we first determine
1
If a final judgment has not been entered or if the trial court’s order is not an appealable interlocutory
order pursuant to Appellate Rule 14, our court lacks subject matter jurisdiction to entertain the appeal.
See In re Estate of Botkins, 970 N.E.2d 164, 168 (Ind. Ct. App. 2012).
10
whether the evidence supports the findings and then whether [the] findings support the
judgment.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009). “On appeal we
‘shall not set aside the findings or judgment unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the
witnesses.’” Id. (quoting Ind. Trial Rule 52(A)). “A judgment is clearly erroneous when
there is no evidence supporting the findings or the findings fail to support the judgment.”
Id. “A judgment is also clearly erroneous when the trial court applies the wrong legal
standard to properly found facts.” Id.We also acknowledge that we “‘give considerable deference to the findings of the
trial court in family law matters[.]’” Stone v. Stone, 991 N.E.2d 992, 999 (Ind. Ct. App.
2013) (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). This
appellate deference is, first and foremost, a reflection that the trial court is in the best
position to judge the facts, ascertain family dynamics, and judge witness credibility and
the like. Id. (citing MacLafferty, 829 N.E.2d at 940-41). “‘Secondly, appeals that
change the results below are especially disruptive in the family law setting.’” Id.
(quoting MacLafferty, 829 N.E.2d at 940). “‘But to the extent a ruling is based on an
error of law or is not supported by the evidence, it is reversible, and the trial court has no
discretion to reach the wrong result.’” Id. (quoting MacLafferty, 829 N.E.2d at 941).
Discussion and Decision
Mother raises numerous procedural and substantive challenges to the trial court’s
findings and conclusions. First, she challenges the trial court’s authority to enter
provisional orders in paternity proceedings. Mother also argues that the trial court erred
11
by applying the relocation statute in this case. Finally, she argues that certain trial court
findings are not supported by the evidence.
A. Provisional Orders In Paternity Proceedings
Indiana Code section 31-15-4-8 provides that in dissolution actions, a trial court
may issue orders for temporary maintenance or support “in such amounts and on such
terms that are just and proper,” and custody orders to the “extent the court considers
proper.” However, the General Assembly has not specifically authorized the use of
provisional orders in paternity proceedings. See generally Ind. Code art. 31-14. Mother
therefore argues that the trial court was without authority to treat the orders entered in
this proceeding “as provisional and was without authority to enter a truly provisional
order in this case.” Appellant’s Br. at 8.
Provisional orders are “designed to maintain the status quo of the parties.”
Linenburg v. Linenburg, 948 N.E.2d 1193, 1196 (Ind. Ct. App. 2011) (quoting Mosley v.
Mosley, 906 N.E.2d 928, 929 (Ind. Ct. App. 2009)). “A provisional order is temporary in
nature and terminates when the final dissolution decree is entered or the petition for
dissolution is dismissed.” Mosley, 906 N.E.2d at 930 (citing Ind. Code § 31-15-4-14).
Great deference is given to the trial court’s decision in provisional matters,
as it should be. The trial court is making a preliminary determination on the
basis of information that is yet to be fully developed. A provisional order is
merely an interim order in place during the pendency of the dissolution
proceedings, which terminates when the final dissolution decree is entered.
Id. See also Klotz v. Klotz, 747 N.E.2d 1187, 1191 (Ind. Ct. App. 2001) (stating
“provisional orders are temporary orders that suffice until a full evidentiary hearing can
be held”).
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As in dissolution proceedings, trial courts are called upon to make weighty
decisions concerning the care and custody of a child in paternity actions. To that end,
Indiana Code section 31-14-10-1 provides that after paternity of a child is established,
“the court shall, in the initial determination, conduct a hearing to determine the issues of
support, custody, and parenting time.” The trial court “shall determine custody in
accordance with the best interests of the child. In determining the child’s best interests,
there is not a presumption favoring either parent.” I.C.§ 31-14-13-2. In making a
custody determination, the trial court “shall consider all relevant factors,” including the
following factors:
(1) The age and sex of the child.
(2) The wishes of the child’s parents.
(3) The wishes of the child, with more consideration given to the child’s
wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parents;
(B) the child’s siblings; and
(C) any other person who may significantly affect the child’s best
interest.
(5) The child’s adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if
the evidence is sufficient, the court shall consider the factors described in
section 2.5(b) of this chapter.
I.C. § 31-14-13-2. The trial court must also determine reasonable parenting time rights
for the noncustodial parent. See I.C. § 31-14-14-1.
Because these issues may reasonably require multiple hearings to resolve, entering
a provisional order in a paternity proceeding concerning parenting time and custody is
quite appropriate while relevant issues are developed for resolution in a final hearing, if
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necessary, and a final order. Moreover, issuing a provisional order in a paternity
proceeding is consistent with Indiana Code section 33-28-1-5, which allows trial courts to
“[m]ake all proper judgments, sentences, decrees, orders, and injunctions, issue all
processes, and do other acts as may be proper to carry into effect the same, in conformity
with Indiana laws and Constitution of the State of Indiana.” See also Ind. Code § 33-29-
1-4 (stating that the “judge of a standard superior court . . . has the same powers relating
to the conduct of business of the court as the judge of the circuit court of the county in
which the standard superior court is located”).
B. Was the Second Amended Provisional Order a Provisional Order or a Custody
Order?
On August 13, 2010, the trial court approved the parties’ “Amended Second
Provisional Order.” The trial court and Father categorize this order as it is titled, but
Mother argues that it was a final custody determination resolving all custody and
parenting time issues between the parties.
The “Amended Second Provisional Order” states that Mother will be relocating
with C.A. to South Carolina and “no Notice of Intent to Move shall be required.”
Appellant’s App. p. 16. The order provides that the parties, who had reconciled, “will
share physical custody of and the expenses for their child and the Mother will be
attending school.” Id. The order also states that if reconciliation fails and the parties
cannot reach an agreement “to a shared physical custody parenting arrangement, then
pending further court order, Mother shall have primary physical possession of [C.A.] and
Father shall have the right to liberal parenting time with” C.A. Id. at 17.
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The parties’ reconciliation failed within months of Mother’s move to South
Carolina. However, as contemplated in the agreed order, the parties agreed to a shared
physical custody arrangement, and Father had physical custody of C.A. in Indiana for
approximately one week per month. These provisions in the order might have continued
indefinitely if the parties could have continued to agree to a custody arrangement and no
other hearing or judicial action would have been required. And the parties operated
under the “Amended Second Provisional Order” for nearly two years without any
additional court filing. For these reasons, we cannot conclude that the “Amended Second
Provisional Order” was a “provisional order” as that term is understood under Indiana
law. See Mosley, 906 N.E.2d at 930 (stating a “provisional order is merely an interim
order in place during the pendency of the dissolution proceeding”); Klotz, 747 N.E.2d at
1191 (stating “provisional orders are temporary orders that suffice until a full evidentiary
hearing can be held”). The order at issue is an agreed order for the custody of C.A.
Therefore, the proceedings that followed should have been adjudicated under the custody
modification statute.
C. Custody Modification
The trial court chose to address the custody issue under the relocation statutes, and
this is not the proper manner to consider and resolve this issue between these parents who
have never married. Moreover, we observe that for the last two years of his young life,
C.A. has resided in South Carolina with Mother having primary physical custody.
Although the trial court improperly addressed the custody issues in this case under
the relocation statutes, the trial court was in fact presented with evidence concerning the
15
best interests of the child and the factors listed in Indiana Code section 31-14-13-2. See
Ind. Code § 31-14-13-6 (stating that a trial court may modify a child custody order if the
modification is in the best interests of the child and there is a substantial change in at
least one of the following factors listed in section 31-14-13-2). The parties tried this
issue through the evidence submitted, and it was certainly appropriate to consider the
effect that the distance between Indiana and South Carolina would have on C.A.’s and
Father’s relationship. See Ind. Code § 31-14-13-2.
Indiana Code section 31-14-13-6 provides that a trial court “may not modify a
child custody order unless” there is a “substantial change” in one of the factors listed in
section 31-14-13-2. To the extent the trial court’s order can be considered a modification
of custody, the court failed to make this required finding under section 31-14-13-6.2
In addition, the trial court’s order concludes that it is in C.A.’s “best interests to
return to and reside in Indiana and for Mother to provide his primary residence and
Father to have liberal parenting time.” Appellant’s App. p. 75. However, if Mother
failed to establish her residence in Indiana by March 31, 2013, the court determined that
C.A.’s “best interest would be served by and primary physical custody shall be awarded
to Father on April 1, 2013 without the need for further hearing.” Id. at 76.
An automatic, future custody modification order violates the custody modification
statute. Bojrab v. Bojrab, 810 N.E.2d 1008, 1012 (Ind. 2004). Language declaring that a
2
In the “Amended Second Provisional Order,” the parties agreed that a “future separation shall constitute
a material change in circumstances.” However, they did not agree that a separation would be a
circumstance warranting modification of custody. Moreover, the parties were separated for well over a
year before Father initiated further proceedings in this case. Finally, the parties’ agreement cannot
circumvent the statutory requirements in section 31-14-13-6.
16
present award of custody is conditioned upon the continuation of a child’s place of
residence is proper as “a determination of present custody under carefully designated
conditions.” Id. However, language ordering that custody shall be automatically
modified in the event of one parent’s relocation “is inconsistent with the requirements of
the custody modification statute[.]” Id.There is a significant difference between the two phrases. One purports to
automatically change custody upon the happening of a future event; the
other declares that the present award of custody is conditioned upon the
continuation of the children’s place of residence. While the automatic
future custody modification violates the custody modification statute, the
conditional determination of present custody does not.
Id.Mother has been C.A.’s primary caregiver since his birth, although Father has
been significantly involved in his upbringing in a continuing and consistent fashion.
Appellant’s App. p. 70. Yet, the trial court concluded that primary physical custody
would be automatically modified if Mother failed to establish her residence in Indiana by
March 31, 2013. Consequently, the trial court’s order violates Indiana Code section 31-
14-13-6, and we reverse the trial court’s order as to this prospective modification of
custody. See Bojrab, 810 N.E.2d at 1012.
Conclusion
The record does not disclose whether Mother remains in South Carolina or has
returned to Indiana. For these reasons, we reverse that portion of the trial court’s order
automatically granting Father primary custody of C.A. if Mother failed to return to
Indiana and remand for a hearing and redetermination of C.A.’s custody.
17
Reversed and remanded for proceedings consistent with this opinion.3
NAJAM, J., concurs.
BROWN, J., dissents with separate opinion.
3
For this reason, we do not address Mother’s claim that certain trial court findings are not supported by
the evidence.
18
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF C.J.A.: )
)
G.C. (Mother), )
)
Appellant, )
)
vs. ) No. 79A02-1302-JP-137
)
T.A. (Father), )
)
Appellee. )
BROWN, Judge, dissenting
I respectfully dissent from the majority’s conclusion that the order is a final
judgment. “The authority of the Indiana Supreme Court and Court of Appeals to exercise
appellate jurisdiction is generally limited to appeals from final judgments.” Ramsey v.
Moore, 959 N.E.2d 246, 251 (Ind. 2012) (quoting Allstate Ins. Co. v. Fields, 842 N.E.2d
804, 806 (Ind. 2006), reh’g denied). We have the duty to determine whether we have
jurisdiction over an appeal before proceeding to determine the rights of the parties on the
merits. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans.
denied. Pursuant to Ind. Appellate Rule 5, this court has jurisdiction over appeals from
19
final judgments of trial courts and only those interlocutory orders from trial courts that
are brought in accordance with Ind. Appellate Rule 14.
Ind. Appellate Rule 2(H) provides that a judgment is a final judgment if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B)
or Trial Rule 56(C) that there is no just reason for delay and in
writing expressly directs the entry of judgment (i) under Trial Rule
54(B) as to fewer than all the claims or parties, or (ii) under Trial
Rule 56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct
Error which was timely filed under Trial Rule 59 or Criminal Rule
16; or
(5) it is otherwise deemed final by law.
The trial court’s order contains several paragraphs in its conclusions of law that
indicate that the order is not a final judgment, specifically:
6. In light of the unusual circumstances in this case, it is in [C.A.’s]
best interests that the Court’s order giving Mother “primary physical
possession” on a temporary basis be extended to no later than March
31, 2013, so that Mother has a reasonable opportunity to return to
Indiana and obtain employment here. Until such time as Mother
returns her residence to Indiana or March 31, 2013, which ever first
occurs, Mother shall have primary physical possession of [C.A.] and
Father shall have liberal parenting time. . . .
*****
8. The Court’s temporary award of primary physical possession to
Mother shall become a final order without the need for further
hearing if Mother restores her residence in Tippecanoe County on
or before March 31, 2013. In accordance with Indiana law, however,
a final order remains subject to the Court’s continuing jurisdiction.
In the event the order becomes final, Father shall have liberal
20
parenting time with [C.A.], which shall consist of two days a week
from after preschool/school with an overnight and every other
weekend. Weekend parenting time shall include any connected days
off from school not covered by the IPTG provisions, including but
not limited to fall break, President’s Day, Martin Luther King Day,
and mid-semester break. Mother’s alternating weekends shall be
similarly extended. The IPTG will govern holiday, special days,
summer parenting time, and the parties’ general obligations, unless
otherwise agreed by the parties.
*****
12. Father shall continue to pay support at the same rate as he has paid
immediately prior to the hearing on November 29, 2012. The Court
will hold the issues of support modification and related matters until
Mother determines where to reside. Counsel are requested to advise
the Court as circumstances require.
Appellant’s Appendix at 75-76 (emphases added).
While the majority concludes that “absent appeal, the order resolves all custody
and parenting time issues unless and until one of the parties files a subsequent motion to
modify custody and/or parenting time,” supra at 10-11, the order indicates that a final
determination is dependent on where Mother resides. Based upon the language in the
order, I would find that it did not dispose of all claims as to all parties and did not
constitute a final judgment. See Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)
(holding that a final judgment disposes of all issues as to all parties thereby ending the
particular case and that it leaves nothing for future determination); R.W.M. v. A.W.M.,
926 N.E.2d 538, 542 (Ind. Ct. App. 2010) (holding that the trial court’s judgment
resolved child custody and support but was not a final appealable judgment from all of
the consolidated pending cases as it left one or more issues unresolved). I also cannot say
21
that the order falls into any of the remaining categories set forth in Ind. Appellate Rule
2(H).4
Parties are permitted to appeal “as a matter of right” the following interlocutory
orders:
(1) For the payment of money;
(2) To compel the execution of any document;
(3) To compel the delivery or assignment of any securities, evidence of
debt, documents or things in action;
(4) For the sale or delivery of the possession of real property;
(5) Granting or refusing to grant, dissolving, or refusing to dissolve a
preliminary injunction;
(6) Appointing or refusing to appoint a receiver, or revoking or refusing
to revoke the appointment of a receiver;
(7) For a writ of habeas corpus not otherwise authorized to be taken
directly to the Supreme Court;
(8) Transferring or refusing to transfer a case under Trial Rule 75; and
(9) Issued by an Administrative Agency that by statute is expressly
required to be appealed as a mandatory interlocutory appeal.
Ind. Appellate Rule 14(A). The trial court’s order does not fit into any of these categories.
Thus, Mother was not entitled to appeal the court’s order as a matter of right.
Other interlocutory orders may be appealed “if the trial court certifies its order and
the Court of Appeals accepts jurisdiction over the appeal,” Ind. Appellate Rule 14(B), or
4
Mother’s notice of appeal indicates that she was appealing from a final judgment. Specifically,
Mother’s notice of appeal checked the box corresponding to an “[a]ppeal from a Final Judgment, as
defined by Appellate Rule 2(H) and 9(I).” Ind. Appellate Rule 9(I) addresses appeals from administrative
agencies and is not applicable.
22
if an interlocutory appeal is provided by statute. Ind. Appellate Rule 14(D). There is no
indication that Mother sought certification from the trial court or permission from this
court to file a discretionary interlocutory appeal. Nor has Mother demonstrated a
statutory right to appeal. Accordingly, I would find that we do not have jurisdiction over
this appeal and dismiss. See Moser v. Moser, 838 N.E.2d 532, 535-536 (Ind. Ct. App.
2005) (holding that this court did not have jurisdiction and dismissing the appeal because
the trial court’s order was not a final judgment and was not an interlocutory appeal of
right), trans. denied.
23