Brian S. Moore v. Del Anderson (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 13, 2017
• Docket: 49A04-1605-CT-955
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 13 2017, 10:07 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Brian S. Moore Trenton W. Gill Indianapolis, Indiana Bailey L. Box Reminger Co., LPA Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian S. Moore, January 13, 2017 Appellant-Plaintiff, Court of Appeals Case No. 49A04-1605-CT-955 v. Appeal from the Marion Superior Court Del Anderson, The Honorable James A. Joven, Appellee-Defendant. Judge The Honorable Kimberly Dean Mattingly, Magistrate The Honorable Shannon L. Logsdon, Commissioner Trial Court Cause No. 49D13-1502-CT-3909

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 1 of 11 Case Summary [1] Pro-se Appellant Brian S. Moore (“Father”) appeals the denial of his motion to

correct error, which challenged a grant of summary judgment in favor of

Appellee-Guardian Ad Litem Del Anderson (“the GAL”) upon Father’s claim

of intentional infliction of emotional distress arising from the GAL’s alleged

perjury in custody modification proceedings involving Father’s children with

Kristy Moore (“Mother”). Father presents the sole restated and consolidated

issue of whether summary judgment was improvidently granted. We affirm.

Facts and Procedural History [2] Father and Mother were divorced in 2009 and agreed to share the legal and

physical custody of their children, with Father having somewhat less than equal

parenting time. In 2010, Mother filed a petition to modify custody, seeking sole

legal and physical custody. Father also filed a petition for modification,

requesting equal parenting time, a modified child support order based upon

equal parenting time, an order that the children remain in a private school, and

a continuation of an agreed-upon restriction of the maternal grandmother’s

visitation with the children.

[3] The parents appeared for an evidentiary hearing on September 19, 2011 and

each testified. At the conclusion of this testimony, the trial court found

insufficient evidence for an immediate modification but expressed concern

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 2 of 11 about parental inability to communicate. The hearing was continued to permit

the appointment of a GAL.

[4] On August 22, 2012, an interim hearing was conducted at which Mother

testified that she had enrolled the children in a public school in Pendleton. The

GAL testified and opined that this was an appropriate change of schools. The

trial court found Mother in contempt for having made the school change

without court authorization, but ordered that the children would remain in

Pendleton Elementary School. Because of the distance between the parental

homes, this necessitated a modification of parenting time. Father was to have

the children each weekend and alternating Mondays.

[5] The previously continued evidentiary hearing, which began in September 2011,

recommenced on February 5, 2013, after a custody evaluation and the GAL’s

report had been filed with the court. The custody evaluator recommended that

Mother have custody with Father having parenting time consistent with the

Indiana Parenting Time Guidelines. The GAL, in his report, made the same

recommendation.

[6] The hearing was continued and the trial judge sua sponte recused herself. The

final day of the modification hearing was April 5, 2013, with a special judge

presiding. Father proposed that the parenting time arrangement continue

unchanged, with the exception of his giving Mother one weekend per month

with children.

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 3 of 11 [7] During the custody hearing, Father took issue with three statements in the GAL

report. He strenuously challenged the GAL’s statements that Father had

maligned attorneys and judges, that Father had cried during an interview, and

that Father’s conduct had prompted a lockdown at Pendleton Elementary

School. Father presented testimony that local law enforcement and school

administration did not characterize the heightened security measures taken at

the school as a lockdown. He also submitted into evidence a recording of his

interview with the GAL and elicited the GAL’s admission that Father was not

heard on the recording to malign judges and attorneys. The GAL re-iterated

during cross-examination that Father had cried. Father moved, unsuccessfully,

to exclude the GAL report on grounds that it contained substantial

misrepresentations.

[8] On June 6, 2013, the trial court issued an order denying Mother’s request for

sole physical and legal custody of the children. Parenting time was modified to

provide that Father would have parenting time each weekend during the school

year, except one weekend per month. Father was to have mid-week parenting

time of no more than four hours. The order also provided that the maternal

grandmother could have unrestricted contact with the children and Father was

not to attend the children’s medical appointments.

[9] Father filed a motion to correct error, which was denied. He then appealed.

See Moore v. Moore, No. 49A04-1308-DR-401 (Ind. Ct. App. May 9, 2014). The

Court remanded the matter to the trial court for a recalculation of Father’s child

support obligation. With respect to the parenting time modification,

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 4 of 11 grandparent access, and medical appointment restriction, the Court affirmed

the trial court’s order. Slip op. at 5-6. Father sought transfer to the Indiana

Supreme Court, which was denied on November 20, 2014.

[10] On February 5, 2015, Father filed a complaint against the GAL, Child

Advocates, Inc., and attorney Cynthia Dean (“Dean”). His claim against the

GAL was one of intentional infliction of emotional distress;1 he asserted that

the GAL had committed perjury in retaliation for Father’s filing a disciplinary

complaint against Dean. According to Father’s complaint, his overnights with

his children had been reduced from 182 to 110 per year, increasing his child

support obligation. Allegedly, Father had expended over $4,300.00 to pay for

transcripts and appellate filing fees and had lost work hours. He requested

unspecified monetary damages.

[11] On April 6, 2015, the defendants filed a motion for summary judgment. At the

conclusion of a hearing conducted on May 11, 2015, summary judgment was

granted in favor of Dean and Child Advocates, Inc. With regard to the claim

against the GAL, the trial court concluded that Indiana Code Section 31-17-6-8,

providing immunity to a GAL for professional conduct, does not immunize

gross misconduct. The trial court reasoned that the allegation of perjury alleged

1 Although Father’s complaint is not a model of clarity, in open court he described his claim as one of “intentional infliction of emotional distress because they knew that I was self-employed.” (Tr. at 34.)

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 5 of 11 gross misconduct and presented a factual issue not resolved by the sparse

designated materials.

[12] On September 11, 2015, the GAL filed a second motion for summary judgment

and his designation of materials, including materials from the custody

proceedings and appeal. At the hearing conducted on January 4, 2016, the

GAL argued that the issue of his credibility had been determined in prior

proceedings, specifically, the custody modification hearing and appeal. On

February 22, 2016, the trial court granted summary judgment to the GAL on

grounds of issue preclusion.2

[13] Father filed a motion to correct error, which was denied. This appeal ensued.

Discussion and Decision [14] Generally, we review a trial court’s ruling on a motion to correct error for an

abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct.

App. 2010), trans. denied. However, to the extent the issues raised on appeal are

purely questions of law, our review is de novo. Id.

2 Issue preclusion, or collateral estoppel, bars subsequent re-litigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former lawsuit and that same fact or issue is presented in a subsequent lawsuit, even if the second adjudication is on a different claim. National Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012). There are three requirements for application: (1) a final judgment on the merits in a court of competent jurisdiction; (2) identity of the issues; and (3) the party to be estopped was a party or the privity of a party in the prior action. Id.

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 6 of 11 [15] Here, the motion to correct error challenged a grant of summary judgment.

Our supreme court has set out the applicable standard of review on summary

judgment as follows:

We review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of … the non-moving parties, summary judgment is appropriate ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to “demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non- movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And “[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

[16] Father has alleged that the GAL committed perjury when he “fabricated and

provided false evidence in a written report,” and “fabricated and presented false Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 7 of 11 testimony in a hearing for a custody modification.” (App. at 28.) Specifically,

in his written report, the GAL had used the term “lock-down” to characterize a

heightened-security event at the children’s school – occasioned by Father’s

warning to “be ready” because he claimed to be “coming back with force.”

(Amended App. at 30.) Other witnesses denied that the heightened security

measures – extra police patrol and school staffing at the door – amounted to a

lock-down. Also, the GAL had claimed that Father had flowing tears, and had

used such terms as “crooks, liars, thieves, or belly-crawlers” to describe lawyers

and judges. (App. Vol. 3 at 34.) However, the derogatory references were not

heard on Father’s recording of his interview with the GAL. According to

Father, the rendering of demonstrably false testimony amounted to intentional

infliction of emotional distress.

[17] In Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991), our supreme court defined

the tort of intentional infliction of emotional distress as conduct by “one who by

extreme and outrageous conduct intentionally or recklessly causes severe

emotional distress to another.” The intent to harm the plaintiff emotionally

constitutes the basis for the tort, and it is found only where the conduct exceeds

all bounds typically tolerated by a decent society and causes mental distress of a

very serious kind. Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011).

The elements of the tort are that the defendant: (1) engages in extreme and

outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe

emotional distress to another. Id.

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 8 of 11 [18] In Bradley v. Hall, 720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999), a panel of this

Court quoted Restatement (Second) of Torts § 46 cmt. D with approval:

The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

[19] In the appropriate case, the question of whether actions constitute “outrageous”

behavior can be decided as a matter of law. Curry, 943 N.E.2d at 361. The

instant matter – where the conduct at issue is the presentation of evidence in a

courtroom where decorum was maintained and no witness was admonished –

is such a case.

[20] The designated materials indicate that Father urged the trial court to find that

substantial misrepresentations were in the GAL report; we cannot say that the

trial court entertained a specific allegation of willful perjury during the course of

the custody proceedings. However, credibility determinations were necessitated

as the GAL provided testimony and documentary evidence and those written

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 9 of 11 and oral representations were vigorously challenged. Father presented

witnesses to contradict the use of the term “lock-down.” He presented a

recorded interview that did not include his use of derogatory language. The

GAL was subjected to cross-examination on his report; he acknowledged the

lack of recorded evidence of derogatory remarks and conceded that others did

not find the term “lock-down” applicable. However, he did not retreat from his

claims that there had been a heightened-security event, or that Father had cried

and used derogatory language to describe lawyers and judges. Father asked

that the trial court strike the GAL report for alleged substantial

misrepresentations; the motion was denied.

[21] In the face of conflicting evidence, the trial court exercised its role as fact-finder

and accepted or rejected representations. Ultimately, Mother was granted some

portion of the modification terms she sought. Father points to the absence of

an explicit finding that the GAL’s testimony and report were credible and

argues that the evidence may have been rejected. However, in the event that

the GAL evidence was found lacking in credibility and not relied upon, Father

would have suffered no harm. The modification order would have been

produced independent of the GAL evidence.

[22] Nonetheless, even assuming a lack of credibility on the part of a witness, this is

not tantamount to extreme and outrageous behavior beyond the bounds of

decency or to the gross misconduct exception to civil immunity contemplated

by Indiana Code Section 31-17-6-8. Father has essentially launched a collateral

attack upon the process leading to the modification order, as opposed to

Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 10 of 11 addressing behavior beyond societal tolerance. The GAL is entitled to

summary judgment upon the claim for intentional infliction of emotional

distress.

Conclusion [23] The trial court properly granted summary judgment in favor of the GAL.

[24] Affirmed.

Najam, J., and May, J., concur.

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