MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Dec 01 2016, 9:41 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE John J. Uskert Jane G. Cotton Cynthia A. Marcus Anderson, Indiana Fishers, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Pete, December 1, 2016 Appellant-Defendant, Court of Appeals Case No. 48A02-1604-GU-847 v. Appeal from the Madison Circuit Court Ray Forrester, The Honorable Mark K. Dudley, Appellee-Plaintiff Judge The Honorable Jason Childers, Commissioner Trial Court Cause No. 48C06-1603-GU-147, 48C06-1603- GU-141
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 1 of 8 [1] Following the entry of an order appointing Ray Forrester guardian of two
minors, K.E. and D.F., Christopher Pete filed a number of motions requesting
the trial court to set aside Forrester’s guardianship and appoint Pete guardian
instead. An evidentiary hearing on Pete’s motions was commenced, but the
hearing was not concluded due to time constraints. Before the trial court had
the opportunity to hear the remainder of the evidence and rule on Pete’s
motions, Pete initiated this appeal.
[2] Concluding that Pete’s appeal is premature, we dismiss.
Facts & Procedural History
[3] Because the evidence in this case was not concluded and the trial court was not
given the opportunity to issue a ruling on Pete’s motions, the facts are
unsurprisingly in dispute. The parties, however, seem to be in agreement on
certain key facts. Beginning in 2012, Pete was involved in a romantic
relationship and cohabited with Charlotte Forrester (Mother) and her children
from two previous relationships, K.E. and D.F. (the Children). Pete and
Mother never married, and when their relationship ended in 2014, Mother
moved in with her father, Forrester (Grandfather). The Children remained in
Pete’s custody during the week and regularly spent weekends and holidays with
Mother at Grandfather’s house, although the precise division of time is in
dispute. The Children continued to see Grandfather after Mother moved out of
Grandfather’s home in April 2015, but not as much. The parties are in
agreement that the Children continued to reside primarily with Pete during this
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 2 of 8 time, but the precise amount of time the Children spent with Pete versus
Mother versus Grandfather is unclear from the scant record.
[4] In March of 2016, Mother executed consents to establish guardianship over the
Children in Grandfather. Grandfather subsequently filed petitions to establish
guardianships over the Children, in which he falsely averred that the Children
were then residing with him.1 On March 22, 2016, the trial court awarded
Grandfather guardianship of the Children without holding a hearing. Pete was
not given notice of the guardianship proceedings, and he only became aware of
the proceedings when custody of the Children was transferred to Grandfather.
[5] Upon learning of the guardianship, Pete filed a motion to intervene in the
guardianship proceedings and an “Emergency Motion for Temporary
Guardianship and to Stay Guardianship Order.” Appellant’s Appendix at 29, 32.
Shortly thereafter, Pete filed separate motions requesting that Grandfather’s
guardianships over the Children be terminated and that Pete be appointed
guardian instead. A hearing was held on Pete’s motions on April 15, 2016, but
the time allotted for the hearing expired before Pete was able to finish
presenting his evidence, and Grandfather was unable to even begin his
presentation. The trial court instructed the parties to contact court staff in order
1 Grandfather and his attorney denied intentionally misleading the court with this statement. Grandfather’s attorney testified that his assistant mistakenly included this statement in the guardianship petition, and Grandfather testified that he signed the petition upon the belief that “as soon as I sign that paper” the Children would in fact be living with him. Transcript at 35. Because the evidence was not concluded, the trial court was deprived of the opportunity to make findings on this issue.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 3 of 8 to schedule an additional hearing to conclude the evidence, and at that time,
Pete orally requested immediate custody of the Children pending the
completion of the evidentiary hearing. The trial court denied Pete’s request and
the parties agreed to continue the presentation of the evidence on May 27,
2016. Instead of doing so, Pete filed his notice of appeal. This appeal ensued.2
Discussion & Decision
[6] As an initial matter, we note that the motions panel of this court denied
Grandfather’s motion to dismiss this appeal on the grounds that Pete was not
appealing from a final judgment. This does not, however, preclude us from
reconsidering the issue. It is well established that we may reconsider a ruling of
our motions panel, but “‘we decline to do so in the absence of clear authority
establishing that it erred as a matter of law.'” Cincinnati Ins. Co. v. Young, 852
N.E.2d 8, 12 (Ind. Ct. App. 2006) (quoting Oxford Fin. Group, Ltd. v. Evans, 795
N.E.2d 1134, 1141 (Ind. Ct. App. 2003)), trans. denied. See also Miller v. Hague
Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (explaining that
“[w]hile we are reluctant to overrule orders decided by the motions panel, this
court has inherent authority to reconsider any decision while an appeal remains
in fieri”). After carefully reviewing the record, we are persuaded that this is
such a case.
2 On April 21, 2016, Pete filed a motion in this court to stay the trial court’s orders appointing Grandfather as the Children’s guardian. This court granted the motion on April 29, 2016. Grandfather subsequently filed a motion to reconsider the order granting the stay, which this court denied on May 20, 2016.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 4 of 8 [7] Except as provided in Ind. Appellate Rule 4,3 this court has jurisdiction in all
appeals from final judgments. Ind. Appellate Rule 5(A); Whittington v.
Magnante, 30 N.E.3d 767, 768 (Ind. Ct. App. 2015). “Whether an order is a
final judgment governs the appellate courts' subject matter jurisdiction.” Front
Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v.
Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). “The lack of appellate subject matter
jurisdiction may be raised at any time, and where the parties do not raise the
issue, this court may consider it sua sponte.” In re Estate of Botkins, 970 N.E.2d
164, 166 (Ind. Ct. App. 2012).
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Dec 01 2016, 9:41 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE John J. Uskert Jane G. Cotton Cynthia A. Marcus Anderson, Indiana Fishers, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Pete, December 1, 2016 Appellant-Defendant, Court of Appeals Case No. 48A02-1604-GU-847 v. Appeal from the Madison Circuit Court Ray Forrester, The Honorable Mark K. Dudley, Appellee-Plaintiff Judge The Honorable Jason Childers, Commissioner Trial Court Cause No. 48C06-1603-GU-147, 48C06-1603- GU-141
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 1 of 8 [1] Following the entry of an order appointing Ray Forrester guardian of two
minors, K.E. and D.F., Christopher Pete filed a number of motions requesting
the trial court to set aside Forrester’s guardianship and appoint Pete guardian
instead. An evidentiary hearing on Pete’s motions was commenced, but the
hearing was not concluded due to time constraints. Before the trial court had
the opportunity to hear the remainder of the evidence and rule on Pete’s
motions, Pete initiated this appeal.
[2] Concluding that Pete’s appeal is premature, we dismiss.
Facts & Procedural History
[3] Because the evidence in this case was not concluded and the trial court was not
given the opportunity to issue a ruling on Pete’s motions, the facts are
unsurprisingly in dispute. The parties, however, seem to be in agreement on
certain key facts. Beginning in 2012, Pete was involved in a romantic
relationship and cohabited with Charlotte Forrester (Mother) and her children
from two previous relationships, K.E. and D.F. (the Children). Pete and
Mother never married, and when their relationship ended in 2014, Mother
moved in with her father, Forrester (Grandfather). The Children remained in
Pete’s custody during the week and regularly spent weekends and holidays with
Mother at Grandfather’s house, although the precise division of time is in
dispute. The Children continued to see Grandfather after Mother moved out of
Grandfather’s home in April 2015, but not as much. The parties are in
agreement that the Children continued to reside primarily with Pete during this
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 2 of 8 time, but the precise amount of time the Children spent with Pete versus
Mother versus Grandfather is unclear from the scant record.
[4] In March of 2016, Mother executed consents to establish guardianship over the
Children in Grandfather. Grandfather subsequently filed petitions to establish
guardianships over the Children, in which he falsely averred that the Children
were then residing with him.1 On March 22, 2016, the trial court awarded
Grandfather guardianship of the Children without holding a hearing. Pete was
not given notice of the guardianship proceedings, and he only became aware of
the proceedings when custody of the Children was transferred to Grandfather.
[5] Upon learning of the guardianship, Pete filed a motion to intervene in the
guardianship proceedings and an “Emergency Motion for Temporary
Guardianship and to Stay Guardianship Order.” Appellant’s Appendix at 29, 32.
Shortly thereafter, Pete filed separate motions requesting that Grandfather’s
guardianships over the Children be terminated and that Pete be appointed
guardian instead. A hearing was held on Pete’s motions on April 15, 2016, but
the time allotted for the hearing expired before Pete was able to finish
presenting his evidence, and Grandfather was unable to even begin his
presentation. The trial court instructed the parties to contact court staff in order
1 Grandfather and his attorney denied intentionally misleading the court with this statement. Grandfather’s attorney testified that his assistant mistakenly included this statement in the guardianship petition, and Grandfather testified that he signed the petition upon the belief that “as soon as I sign that paper” the Children would in fact be living with him. Transcript at 35. Because the evidence was not concluded, the trial court was deprived of the opportunity to make findings on this issue.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 3 of 8 to schedule an additional hearing to conclude the evidence, and at that time,
Pete orally requested immediate custody of the Children pending the
completion of the evidentiary hearing. The trial court denied Pete’s request and
the parties agreed to continue the presentation of the evidence on May 27,
2016. Instead of doing so, Pete filed his notice of appeal. This appeal ensued.2
Discussion & Decision
[6] As an initial matter, we note that the motions panel of this court denied
Grandfather’s motion to dismiss this appeal on the grounds that Pete was not
appealing from a final judgment. This does not, however, preclude us from
reconsidering the issue. It is well established that we may reconsider a ruling of
our motions panel, but “‘we decline to do so in the absence of clear authority
establishing that it erred as a matter of law.'” Cincinnati Ins. Co. v. Young, 852
N.E.2d 8, 12 (Ind. Ct. App. 2006) (quoting Oxford Fin. Group, Ltd. v. Evans, 795
N.E.2d 1134, 1141 (Ind. Ct. App. 2003)), trans. denied. See also Miller v. Hague
Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (explaining that
“[w]hile we are reluctant to overrule orders decided by the motions panel, this
court has inherent authority to reconsider any decision while an appeal remains
in fieri”). After carefully reviewing the record, we are persuaded that this is
such a case.
2 On April 21, 2016, Pete filed a motion in this court to stay the trial court’s orders appointing Grandfather as the Children’s guardian. This court granted the motion on April 29, 2016. Grandfather subsequently filed a motion to reconsider the order granting the stay, which this court denied on May 20, 2016.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 4 of 8 [7] Except as provided in Ind. Appellate Rule 4,3 this court has jurisdiction in all
appeals from final judgments. Ind. Appellate Rule 5(A); Whittington v.
Magnante, 30 N.E.3d 767, 768 (Ind. Ct. App. 2015). “Whether an order is a
final judgment governs the appellate courts' subject matter jurisdiction.” Front
Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v.
Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). “The lack of appellate subject matter
jurisdiction may be raised at any time, and where the parties do not raise the
issue, this court may consider it sua sponte.” In re Estate of Botkins, 970 N.E.2d
164, 166 (Ind. Ct. App. 2012).
[8] A final judgment is one that “disposes of all claims as to all parties[.]” Ind.
Appellate Rule 2(H)(1); see also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.
Ct. App. 2002) (explaining that a final judgment “disposes of all issues as to all
parties, to the full extent of the court to dispose of the same, and puts an end to
the particular case as to all of such parties and all of such issues” (quoting
Hudson v. Tyson, 383 N.E.2d 66, 69 (Ind. 1978)). Because the evidence in this
case was not concluded and the trial court did not rule on Pete’s motions, he is
not appealing from a final judgment within the meaning of App. R. 2(H)(1).
[9] In his response to Grandfather’s motion to dismiss this appeal, however, Pete
argued that his Emergency Motion for Temporary Guardianship and to Stay
Guardianship Order should have been treated as a Trial Rule 60(B)(3) motion
3 App. R. 4 provides for appeal directly to our Supreme Court for a narrow class of cases, none of which are relevant here.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 5 of 8 for relief from judgment due to fraud on the court based on Grandfather’s false
representation in his guardianship petition that the Children were living with
him. See T.R. 60(B)(3) (providing that the court may relieve a party from a
judgment obtained by “fraud . . ., misrepresentation, or other misconduct of an
adverse party). Pete further notes that rulings on T.R. 60(B) motions are
deemed final and appealable. See T.R. 60(C) (providing that a judgment
granting or denying relief under T.R. 60(B) “shall be deemed a final judgment,
and an appeal may be taken therefrom”); App. R. 2(H)(3) (providing that a
judgment is final “if it is deemed final under Trial Rule 60(C)).
[10] Even if we accept Pete’s argument that his Emergency Motion was in substance
a T.R. 60(B)(3) motion for relief from judgment and should have been treated
as such, the fact remains that Pete initiated this appeal before the evidence was
concluded and before the trial court had the opportunity to issue a ruling
thereon. In other words, the trial court has not yet issued “a ruling or order . . .
denying or granting relief” under T.R. 60(B). See T.R. 60(C). To the extent
Pete argues that the trial court’s denial of his oral motion for immediate custody
of the Children pending the completion of the evidentiary hearing should be
treated as a denial of relief under T.R. 60(B), we disagree. Pete essentially
argues that that the trial court should have found that Grandfather and his
attorney had perpetrated a fraud on the court without giving them the
opportunity to respond or present their own evidence and argument to rebut
Pete’s claims, but basic considerations of fairness and due process prohibited
the court from doing so. See T.R. 60(D) (providing that in considering a T.R.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 6 of 8 60(B) motion, the trial court “shall hear any pertinent evidence”); Roy A. Miller
& Sons, Inc. v. Indus. Hardwoods Corp., 775 N.E.2d 1168, 1171 (Ind. Ct. App.
2002) (explaining that “due process clearly requires a fair opportunity to be
heard” and that “[a]n opportunity to be heard includes the right to present
evidence, confront adverse witnesses, make arguments, and receive judicial
findings based upon the evidence and arguments”). Moreover, it is apparent
from the trial court’s oral and written rulings that Pete’s motions remained
pending at the end of the April 15, 2015 hearing. The trial court did not deny
Pete relief by denying his oral motion for immediate custody of the Children
pending the conclusion of the hearing. Rather, it merely preserved the status
quo until the court had the opportunity to hear all of the evidence necessary to
determine whether Pete was entitled to relief on the basis that Grandfather’s
guardianship was obtained by fraud.
[11] For all of these reasons, we conclude that Pete’s appeal is premature. Because
Pete does not appeal from a final judgment,4 this court lacks subject matter
jurisdiction to entertain this appeal and must therefore dismiss.5
[12] Appeal dismissed.
4 We also note that Pete is not appealing from an interlocutory order deemed appealable pursuant to Ind. Appellate Rule 14. 5 Nothing in this opinion should be taken as a comment on the merits of Pete’s pending motions or the propriety of Grandfather’s actions with respect to obtaining guardianship of the Children. These issues remain for the trial court’s consideration.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 7 of 8 [13] Bradford, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 8 of 8