FILED Apr 28 2023, 10:07 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Dan J. May Whitney K. Beck Kokomo, Indiana Kokomo, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.M., April 28, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-PO-1743 v. Appeal from the Howard Circuit Court J.M., The Honorable Douglas A. Tate, Appellee-Respondent Special Judge The Honorable Cheyenne P. Shepherd, Magistrate Trial Court Cause No. 34C01-2206-PO-1230
Opinion by Judge Mathias Judges May and Bradford concur.
Mathias, Judge.
[1] C.M. (“Mother”) appeals the Howard Circuit Court’s order dismissing an ex
parte order of protection that was previously issued by the White Circuit Court
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 1 of 8 against J.M. (“Father”). Mother raises three issues for our review, which we
restate as:
I. Whether Mother preserved for appellate review her claim that the magistrate lacked authority to preside over the order of protection hearing.
II. Whether the trial court erred when it issued a written order five days after the dismissal was noted on the chronological case summary (“CCS”).
III. Whether the trial court had jurisdiction to modify or enforce custody of the parties’ child and parenting time.
[2] We affirm.
Facts and Procedural History [3] Father and Mother were married and have one minor child (“Child”).1 They
divorced in Howard County in 2018. In May 2022, Mother filed a petition for
an order of protection against Father on Child’s behalf with the White Circuit
Court. That court granted an ex parte order of protection against Father on
May 24.
[4] On May 26, Father filed an “Objection to Venue and Lack of Jurisdiction and
Motion to Transfer” alleging that, because the parties’ dissolution decree was
entered in Howard County, the Howard Circuit Court had jurisdiction over the
1 Although there is no dispute that Child is a minor, the parties do not state Child’s age, and we cannot discern her age from the record on appeal.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 2 of 8 order of protection. The White Circuit Court agreed and transferred the matter
to the Howard Circuit Court (hereinafter the “trial court”).
[5] Father then filed with the trial court in Howard County a request for a hearing
and motion to terminate the order of protection. On June 8, the parties
stipulated that Howard Superior Court Judge Douglas Tate would serve as
special judge in the matter. Judge Tate assumed jurisdiction on June 10 and set
a fact-finding hearing for June 23 “in the Howard Magistrate Court.”
Appellant’s App. Vol. 2, p. 22.
[6] At the conclusion of the June 23 hearing, with the magistrate presiding, the trial
court ruled from the bench and stated that:
a) the protective order should be terminated immediately; b) . . . Father should be permitted to resume his parenting time; and c) . . . Mother is ordered to pay $2,730.00 in attorney’s fees to Father’s counsel. [And the trial court] indicated to the parties that the foregoing would be reduced to a written order.
Appellee’s Br. at 8.2 Also on June 23, according to the CCS, the trial court
entered an order dismissing the ex parte order of protection. Then, on June 28,
the trial court issued its written order, which included the court’s findings and
conclusions. In that order, the trial court concluded as follows:
19. The Ex Parte Order for Protection is hereby DISMISSED.
2 Mother has not included a copy of the transcript in the record on appeal. Mother does not dispute Father’s description of the court’s ruling from the bench.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 3 of 8 20. [Mother] is ordered to immediately transfer the child to [Father’s] care to begin his summer parenting time. For the remainder of the summer, the child shall reside with [Father] as primary custodial parent. [Mother] shall exercise parenting time with the child every other weekend. When school starts, and the summer visitation is over, the parties shall revert to the parenting time established in the dissolution case.
21. [Mother] is ordered to pay [Father’s] attorney’s fees to Whitney K. Beck in the amount of $2,730.00.
Appellant’s App. Vol. 2, p. 8. This appeal ensued.5566
Discussion and Decision Issue One: Magistrate
[7] Mother first contends that Magistrate Shepherd did not have “jurisdiction” to
preside over the hearing on June 23, 2022. Appellant’s Br. at 10. In particular,
Mother asserts that “[t]here is no written court order, CCS entry, nor other
evidence that the Magistrate was appointed Judge Pro Tempore as required by
law. Magistrate Shep[he]rd just appeared in the courtroom and announced that
she was hearing the case.” Id.
[8] In support of her contention, Mother cites Indiana Trial Rule 79(I)(2)(a), which
provides:
In the event that a special judge assumes jurisdiction and is thereafter unavailable for any reason on the date when a hearing or trial is scheduled:
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 4 of 8 (a) the special judge may, as appropriate, appoint a judge pro tempore, temporary judge, magistrate, or senior judge of the court where the case is pending, provided such judge or magistrate is otherwise eligible to serve and has not previously had jurisdiction of the case removed from them pursuant to the Rules of Trial Procedure[.]
And Mother argues that an appointment under Trial Rule 79 must be made in
writing pursuant to Trial Rule 63(E).
[9] Mother’s argument misses the mark. As Father points out, in the trial court’s
June 10 order setting the June 23 hearing, the court stated that the hearing
would be “in the Howard Magistrate Court.” Appellant’s App. Vol. 2, p. 22.
And Mother did not object to the magistrate presiding over the hearing at any
time before or, more significantly, during the hearing.3 Father contends that
Mother has waived this issue for our review, and we agree.
[10] In Tapia v. State, 753 N.E.2d 581, 588 (Ind. 2001), the defendant in a post-
conviction proceeding argued that “a magistrate who issued several orders in
his case lacked authority over his post-conviction proceedings because a special
judge had been assigned to hear the case.” Our Supreme Court held that the
defendant had “waived any claims in regards to the magistrate’s authority
because he failed to object.” Id. (citing Floyd v. State, 650 N.E.2d 28, 32 (Ind.
3 Mother contends that the trial court’s minute entry did not indicate that the magistrate would preside over the hearing. Rather, she thought that Judge Tate would preside in the magistrate’s courtroom. But that contention is neither here nor there, as Mother did not object during the hearing.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 5 of 8 1994) (“[I]t has been the long-standing policy of this court to view the authority
of the officer appointed to try a case not as affecting the jurisdiction of the
court. Therefore, the failure of a party to object at trial to the authority of a
court officer to enter a final appealable order waives the issue for appeal”)).
[11] Likewise, we hold that Mother waived any claim that the magistrate did not
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FILED Apr 28 2023, 10:07 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Dan J. May Whitney K. Beck Kokomo, Indiana Kokomo, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.M., April 28, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-PO-1743 v. Appeal from the Howard Circuit Court J.M., The Honorable Douglas A. Tate, Appellee-Respondent Special Judge The Honorable Cheyenne P. Shepherd, Magistrate Trial Court Cause No. 34C01-2206-PO-1230
Opinion by Judge Mathias Judges May and Bradford concur.
Mathias, Judge.
[1] C.M. (“Mother”) appeals the Howard Circuit Court’s order dismissing an ex
parte order of protection that was previously issued by the White Circuit Court
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 1 of 8 against J.M. (“Father”). Mother raises three issues for our review, which we
restate as:
I. Whether Mother preserved for appellate review her claim that the magistrate lacked authority to preside over the order of protection hearing.
II. Whether the trial court erred when it issued a written order five days after the dismissal was noted on the chronological case summary (“CCS”).
III. Whether the trial court had jurisdiction to modify or enforce custody of the parties’ child and parenting time.
[2] We affirm.
Facts and Procedural History [3] Father and Mother were married and have one minor child (“Child”).1 They
divorced in Howard County in 2018. In May 2022, Mother filed a petition for
an order of protection against Father on Child’s behalf with the White Circuit
Court. That court granted an ex parte order of protection against Father on
May 24.
[4] On May 26, Father filed an “Objection to Venue and Lack of Jurisdiction and
Motion to Transfer” alleging that, because the parties’ dissolution decree was
entered in Howard County, the Howard Circuit Court had jurisdiction over the
1 Although there is no dispute that Child is a minor, the parties do not state Child’s age, and we cannot discern her age from the record on appeal.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 2 of 8 order of protection. The White Circuit Court agreed and transferred the matter
to the Howard Circuit Court (hereinafter the “trial court”).
[5] Father then filed with the trial court in Howard County a request for a hearing
and motion to terminate the order of protection. On June 8, the parties
stipulated that Howard Superior Court Judge Douglas Tate would serve as
special judge in the matter. Judge Tate assumed jurisdiction on June 10 and set
a fact-finding hearing for June 23 “in the Howard Magistrate Court.”
Appellant’s App. Vol. 2, p. 22.
[6] At the conclusion of the June 23 hearing, with the magistrate presiding, the trial
court ruled from the bench and stated that:
a) the protective order should be terminated immediately; b) . . . Father should be permitted to resume his parenting time; and c) . . . Mother is ordered to pay $2,730.00 in attorney’s fees to Father’s counsel. [And the trial court] indicated to the parties that the foregoing would be reduced to a written order.
Appellee’s Br. at 8.2 Also on June 23, according to the CCS, the trial court
entered an order dismissing the ex parte order of protection. Then, on June 28,
the trial court issued its written order, which included the court’s findings and
conclusions. In that order, the trial court concluded as follows:
19. The Ex Parte Order for Protection is hereby DISMISSED.
2 Mother has not included a copy of the transcript in the record on appeal. Mother does not dispute Father’s description of the court’s ruling from the bench.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 3 of 8 20. [Mother] is ordered to immediately transfer the child to [Father’s] care to begin his summer parenting time. For the remainder of the summer, the child shall reside with [Father] as primary custodial parent. [Mother] shall exercise parenting time with the child every other weekend. When school starts, and the summer visitation is over, the parties shall revert to the parenting time established in the dissolution case.
21. [Mother] is ordered to pay [Father’s] attorney’s fees to Whitney K. Beck in the amount of $2,730.00.
Appellant’s App. Vol. 2, p. 8. This appeal ensued.5566
Discussion and Decision Issue One: Magistrate
[7] Mother first contends that Magistrate Shepherd did not have “jurisdiction” to
preside over the hearing on June 23, 2022. Appellant’s Br. at 10. In particular,
Mother asserts that “[t]here is no written court order, CCS entry, nor other
evidence that the Magistrate was appointed Judge Pro Tempore as required by
law. Magistrate Shep[he]rd just appeared in the courtroom and announced that
she was hearing the case.” Id.
[8] In support of her contention, Mother cites Indiana Trial Rule 79(I)(2)(a), which
provides:
In the event that a special judge assumes jurisdiction and is thereafter unavailable for any reason on the date when a hearing or trial is scheduled:
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 4 of 8 (a) the special judge may, as appropriate, appoint a judge pro tempore, temporary judge, magistrate, or senior judge of the court where the case is pending, provided such judge or magistrate is otherwise eligible to serve and has not previously had jurisdiction of the case removed from them pursuant to the Rules of Trial Procedure[.]
And Mother argues that an appointment under Trial Rule 79 must be made in
writing pursuant to Trial Rule 63(E).
[9] Mother’s argument misses the mark. As Father points out, in the trial court’s
June 10 order setting the June 23 hearing, the court stated that the hearing
would be “in the Howard Magistrate Court.” Appellant’s App. Vol. 2, p. 22.
And Mother did not object to the magistrate presiding over the hearing at any
time before or, more significantly, during the hearing.3 Father contends that
Mother has waived this issue for our review, and we agree.
[10] In Tapia v. State, 753 N.E.2d 581, 588 (Ind. 2001), the defendant in a post-
conviction proceeding argued that “a magistrate who issued several orders in
his case lacked authority over his post-conviction proceedings because a special
judge had been assigned to hear the case.” Our Supreme Court held that the
defendant had “waived any claims in regards to the magistrate’s authority
because he failed to object.” Id. (citing Floyd v. State, 650 N.E.2d 28, 32 (Ind.
3 Mother contends that the trial court’s minute entry did not indicate that the magistrate would preside over the hearing. Rather, she thought that Judge Tate would preside in the magistrate’s courtroom. But that contention is neither here nor there, as Mother did not object during the hearing.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 5 of 8 1994) (“[I]t has been the long-standing policy of this court to view the authority
of the officer appointed to try a case not as affecting the jurisdiction of the
court. Therefore, the failure of a party to object at trial to the authority of a
court officer to enter a final appealable order waives the issue for appeal”)).
[11] Likewise, we hold that Mother waived any claim that the magistrate did not
have jurisdiction over the order of protection hearing.
Issue Two: Written Order
[12] Mother next contends that “the court lost all jurisdiction to enter orders after
dismissal of the case as case law clearly holds that the case is no longer pending
for any purpose and that the dismissal disposed of the PO case in its entirety.”
Appellant’s Br. at 12. In support, Mother cites case law holding that “after [a]
cause is dismissed and judgment of dismissal entered by the court, the cause of
action is no longer pending for any purpose.” Id. (quoting Fair Share Org. v.
Kroger Co., 132 Ind. App. 160, 170, 176 N.E.2d 205 (1961)). Thus, Mother
argues that the court’s written findings and conclusions, entered five days after
the ex parte order of protection was dismissed, are a nullity. Mother is
incorrect.
[13] In Fair Share Org., the plaintiff voluntarily dismissed its complaint. This Court
noted that the voluntary dismissal was “the equivalent of a nonsuit.” 132 Ind.
App. 160, 170, 176 N.E.2d 205 (1961). Here, in contrast, Father moved for
dismissal of Mother’s petition. Thus, our analysis in Fair Share Org. is
inapplicable here. Moreover, here, the trial court expressly stated in open court
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 6 of 8 that it dismissed the ex parte order of protection; that Father’s parenting time
was to resume; and that Mother was to pay $2,730.00 in attorney’s fees to
Father’s counsel. Those orders were merely reduced to writing after the hearing.
Mother has not shown any error, let alone reversible error, on this issue.
Issue Three: Custody and Parenting Time
[14] Finally, Mother contends that, in the context of the order of protection
proceeding, the magistrate “had no jurisdiction to enforce, modify, or
adjudicate any of the issues of custody or parenting time which were pending
before Judge Tate as special judge of the Howard Circuit Court in the
dissolution action.” Appellant’s Br. at 13. In support, Mother cites State ex rel.
Meade v. Marshall Superior Court II, 644 N.E.2d 87 (Ind. 1994). In that case, our
Supreme Court held that, “where no emergency situation exists, . . . the court
where the divorce, custody, and visitation matters were heard retains
continuing jurisdiction over the case. A party should go to that court to secure a
protective order, absent some extraordinary circumstance.” Id. at 90.
[15] Here, Mother filed her petition for order of protection in the wrong court. It was
subsequently transferred to the trial court, which is the same court with
jurisdiction over the parties’ dissolution, including custody and parenting time
matters. Mother’s argument here is without merit.
[16] For all of the above reasons, we affirm the trial court’s judgment.
[17] Affirmed.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 7 of 8 May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 22A-PO-1743 | April 28, 2023 Page 8 of 8