Carrie Sturdivant v. Michael Sturdivant (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2016
• Docket: 57A04-1510-DR-1701
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 31 2016, 7:10 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Kevin L. Likes Jon C. Owen Likes Law Office Yoder & Kraus, P.C. Auburn, Indiana Kendallville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carrie Sturdivant, May 31, 2016 Appellant-Petitioner, Court of Appeals Case No. 57A04-1510-DR-1701 v. Appeal from the Noble Circuit Court Michael Sturdivant, The Honorable Appellee-Respondent. G. David Laur, Judge Trial Court Cause No. 57C01-1502-DR-24

Kirsch, Judge.

[1] Carrie Sturdivant (“Mother”) appeals the trial court’s dissolution decree, which

granted physical custody of the parties’ children to Michael Sturdivant

(“Father”). Mother raises one issue for our review: whether the trial court

Court of Appeals of Indiana | Memorandum Decision 57A04-1510-DR-1701 | May 31, 2016 Page 1 of 4 abused its discretion when it determined the issue of custody in a summary

proceeding manner.

[2] We affirm.

Facts and Procedural History [3] On February 6, 2015, Mother filed a petition for dissolution of marriage.

Mother and Father are the parents of two children. At the final hearing on the

petition for dissolution, the parties informed the trial court that issues of

property and debt had been determined by agreement, and the hearing would

only discuss issues of custody, parenting time, and child support. Tr. at 6-7.

Both parties were sworn in, and Mother’s counsel advised the trial court that,

prior to the hearing, the parties had agreed to a summary presentation. Id. at 4-

5, 10. Thereafter, the hearing proceeded with the attorneys primarily presenting

evidence, and the parties responding to inquiries by the trial court. At a later

point in the hearing, Mother’s counsel informed the trial court that the

agreement to a summary presentation was to not include testimony from any

other parties or other witnesses. Id. at 50.

[4] At the conclusion of the hearing, the trial court took the matter under

advisement, and on August 13, 2015, issued the dissolution decree, in which it

ordered that Mother and Father shall have joint legal custody of the children

and that Father shall have physical custody of the children. On August 26,

2015, Mother filed a “Verified Motion for Stay of Execution, Motion to Correct

Error, and Motion for Relief from Judgment.” Appellant’s App. at 16. In her

Court of Appeals of Indiana | Memorandum Decision 57A04-1510-DR-1701 | May 31, 2016 Page 2 of 4 motion, Mother acknowledged that “counsel for the parties stipulated to

presenting the evidence in summary fashion.” Id. The trial court denied

Mother’s motions in an order dated on September 28, 2015. Mother now

appeals.

Discussion and Decision [5] Mother argues that the trial court abused its discretion when it determined the

issue of custody of the children in a summary proceeding manner. In the

present case, both Mother and Father were present at the final hearing on the

dissolution petition, were represented by counsel, and were sworn in by the trial

court. Mother’s counsel notified the trial court that, prior to the hearing, the

parties had agreed to a summary presentation. Tr. at 10. The hearing then

proceeded with the attorneys primarily presenting evidence, and the parties

responding to inquiries made by the trial court. Later in the hearing, Mother’s

counsel informed the trial court that the agreement to a summary presentation

was to not include testimony from any other parties or other witnesses. Id. at

50. No objections were made to the summary nature of the proceedings.

“[O]bjections not contemporaneously raised are waived.” Bogner v. Bogner, 29

N.E.3d 733, 740 (Ind. 2015). Timely objections to the procedure utilized by the

trial court are required, and “‘[a]n appellant cannot sit idly by without

objecting, await the outcome of trial, and thereafter raise an issue for the first

time on appeal.’” Id. (quoting Trout v. Trout, 638 N.E.2d 1306, 1307 (Ind. Ct.

App. 1994)).

Court of Appeals of Indiana | Memorandum Decision 57A04-1510-DR-1701 | May 31, 2016 Page 3 of 4 [6] In the present case, both parties agreed to proceed with the final hearing in a

summary fashion, and at no point did either party object to the hearing being

conducted in this manner. Further, after the dissolution decree was issued,

Mother filed a motion to correct error, in which she stated that, “counsel for the

parties stipulated to presenting the evidence in summary fashion” at the final

hearing. Appellant’s App. at 16. We, therefore, conclude that Mother has

waived her right to appeal the nature of the summary proceeding.

[7] Additionally, despite this waiver, “Indiana adheres to the rule requiring a

showing of prejudice before reversal may be granted.” Neese v. Kelley, 705

N.E.2d 1047, 1050 (Ind. Ct. App. 1999). Mother has the burden to show actual

prejudice. Id. Here, Mother was represented by counsel during the proceedings

and was given a full opportunity to present her own arguments and evidence.

Mother was also given the opportunity to rebut the arguments presented by

Father. We, therefore, conclude that Mother was not prejudiced by the

summary nature of the proceedings. The trial court did not abuse its discretion.

[8] Affirmed.

[9] Riley, J., and Pyle, J., concur.

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