In the Matter of the Marriage of: Toshisada Onishi v. Rachel E. House and State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 12, 2020
• Docket: 19A-DC-2316
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 12 2020, 8:39 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANTS PRO SE ATTORNEYS FOR APPELLEE- Toshisada Onishi INTERVENOR STATE OF Harrison, New Jersey INDIANA Teruko Onishi Curtis T. Hill, Jr. Nagahama, Shiga, Japan Attorney General of Indiana Frances H. Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Marriage of: May 12, 2020

Toshisada Onishi, Court of Appeals Case No. 19A-DC-2316 Appellant-Respondent, Appeal from the v. St. Joseph Superior Court The Honorable Rachel E. House, Jenny Pitts Manier, Judge Trial Court Cause No. Appellee-Petitioner, 71D05-1605-DR-5011

1 We note that the original trial court cause number for this case was 71D06-1605-DR-501, but after the decree of dissolution was issued, Toshisada Onishi moved for a special judge to be appointed in the case.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 1 of 10 and State of Indiana, Appellee-Intervenor.

Kirsch, Judge.

[1] Toshisada Onishi (“Father”) appeals the trial court’s orders denying his motion

to enter certain exhibits into the CCS and dismissing his petition to modify

custody and a petition filed on behalf of his mother, Teruko Onishi

(“Grandmother”), for grandparent visitation. Father raises several issues for

our review on appeal that we restate as: whether the trial court abused its

discretion when it dismissed Father’s petition to modify custody and the

petition for grandparent visitation.2

The case was transferred to St. Joseph Superior Court 5 with Judge Jenny Pitts Manier presiding, and the cause number, therefore, changed to 71D05-1605-DR-501. 2 Father also raises a claim that the trial court erred when it issued an order denying his motion to enter Exhibits A-GG into the CCS. However, we note that the challenged trial court order occurred on October 24, 2019 after Father filed his notice of appeal and after this court acquired jurisdiction under Indiana Appellate Rule 8.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 2 of 10 [2] We affirm.3

Facts and Procedural History4 [3] Father and Rachel E. House (“Mother”) were married in 2012 and had a child

together, who was born on September 5, 2014. Appellant’s App. Vol. 2 at 47. In

November 2015, when the parties separated, a Consent Order was entered that

was in the nature of a provisional order and set out child custody, child support

and parenting time terms. Id. at 43-46, 48. On February 5, 2019, the trial court

issued a decree of dissolution dissolving the marriage between Mother and

Father, granting sole legal custody and physical custody of their child to

Mother, and ordering Father to pay child support for the child. Id. at 55, 57.

[4] The State filed a motion to intervene in the case on July 22, 2019 after Mother

requested IV-D services for child support. Appellee’s App. Vol. 2 at 2. Father

filed objections to the State’s motion to intervene on July 22, 2019 and on

3 The State of Indiana filed a brief as Appellee-Intervenor and raised the following issue: whether Father’s appeal should be dismissed for lack of subject matter jurisdiction because the order allowing the State to intervene was a non-final interlocutory order. We agree with that State that a challenge to the trial court’s grant of the State’s motion to intervene should be dismissed for lack of subject matter jurisdiction. See In re Estate of Botkins, 970 N.E.2d 164, 168 (Ind. Ct. App. 2012) (dismissing for lack of subject matter jurisdiction an appeal from an order that was neither a final judgment nor an appealable interlocutory order). However, Father does not raise such a challenge on appeal. 4 We note that Father’s statement of facts section includes argumentative statements and conclusions, in violation of Indiana Appellate Rule 46(A)(6), which limits the statement of facts to a narrative description of the relevant facts stated in accordance with the appropriate standard of review. See New v. Pers. Representative of Estate of New, 938 N.E.2d 758, 765 (Ind. Ct. App. 2010) (statement of facts section of appellant’s brief shall neither omit relevant facts nor contain subjective argument), trans. denied. Father is expected and required to follow Indiana Appellate Rules in filing his brief.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 3 of 10 August 1, 2019. Id. at 3, 8. Following a hearing held on September 9, 2019,

the trial court granted the State’s motion to intervene in an order issued on

September 11, 2019. Appellant’s App. Vol. 10 at 95. Father filed a motion to

reconsider on September 12, 2019, an amended motion to reconsider on

September 13, 2019, and on September 16, 2019, he filed a request that the trial

court certify its order granting the motion to intervene for interlocutory appeal.

Id. at 100, 105, 111. The trial court denied all of the motions by order on

September 17, 2019. Id. at 117.

[5] On August 11, 2019, a petition for grandparent visitation was filed on behalf of

Grandmother, who resides in Japan. Id. at 27. Also on August 11, 2019,

Father filed a petition for modification of child custody, alleging that there had

been a change in circumstances so substantial and continuing as to warrant a

change in the custody order pursuant to Indiana Code section 31-17-2-21(a). Id.

at 35-38. On August 28, 2019, the trial court issued a scheduling order for the

hearing scheduled for September 9, 2019, in which it stated the court intended

to address, among other things, the State’s motion to intervene, preliminary

questions concerning the petition for grandparent visitation, and the facilitation

of parenting time. Id. at 64-65. After a motion to continue the hearing was

filed by Father, the trial court issued another order, stating that it did not

contemplate an evidentiary hearing occurring on September 9, 2019, and that if

such a hearing becomes necessary, it will be reset at date and time convenient

for all parties. Id. at 85.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 4 of 10 [6] After the hearing was held on September 9, 2019, the trial court issued several

orders on September 11, 2019. One order dismissed the petition for

grandparent visitation, stating in pertinent part, the trial court “now determines

that Father, who is an attorney licensed to practice in the State of New Jersey,

acted as counsel for the paternal grandparents in connection with the filing of

[the petition for grandparent visitation]” as well as other filings purported to be

filed by Grandmother pro se. Id. at 93-94. The trial court further ordered that

“[a]ll pleadings, filings, summonses, subpoenas and other documents pertaining

[to] the issue of grandparent visitation are stricken” and Father was ordered

“not to file any materials in this case on behalf of, or to advance the concerns

of, any person other than himself without proper license and authorization.”

Id. at 94.

[7] The trial court issued another order on September 11 that dismissed Father’s

petition to modify custody without a hearing, stating that, subsequent to the

entry of the dissolution decree, Father had filed “well over 100 motions, notices

and the like . . . , including multiple motions to correct error, for new trial

proceedings, appellate review and more, including a motion for selection of

special judge ten . . . days after the entry of the [d]ecree, and continued filings,

all aimed at reversing . . . the [d]ecree.” Id. at 96-98. The trial court found that

none of Father’s stated reasons for changed circumstances “articulate[d] a

sufficient basis, individually or in the aggregate, to consider Father’s motion as

viable” and that Father raised matters that occurred prior to the dissolution

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 5 of 10 hearing held on January 10, 2019 that should have been brought up at the

hearing. Id. at 97. The trial court further found that “[n]one of the facts alleged

by Father suggests that circumstances have so radically changed that it is now

in the best interest of the child, only six months later, to remove him from

Mother’s custody to place him in Father’s custody.” Id. at 98.

[8] On September 12, 13, and 16, 2019, Father filed motions to reconsider the trial

court’s orders, and the trial court issued an order denying all of the motions on

September 17, 2019. Id. at 100-01, 105-09, 111-14, 117. A motion to

reconsider the dismissal of the petition for grandparent visitation was filed on

September 23, 2019, which the trial court found deemed denied in an order

issued on October 17, 2019. Id. at 118-20, 184-85. Father now appeals.

Discussion and Decision [9] We begin by noting that Mother has not filed an appellee’s brief. When an

appellee fails to file a brief, we need not undertake the burden of developing an

argument on appellee’s behalf. C.V. v. C.R., 64 N.E.3d 850, 852 (Ind. Ct. App.

2016). Instead, applying a less stringent standard of review, we may reverse the

trial court’ s judgment if the appellant can prove a case of prima facie error. Id.

“Prima facie error in this context is defined as, ‘at first sight, on first appearance,

or on the face of it.’” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.

2006) (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)).

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 6 of 10 [10] Father argues that the trial court abused its discretion when it dismissed the

motion for grandparent visitation and his petition to modify custody. He

contends that the trial court abused its discretion in dismissing the motions

because it did not give any serious consideration to the material evidence on his

claims relating to a change in the factors concerning the best interests of the

child. He asserts that the trial court ignored Mother’s intentional violations of

the November 2015 Consent Order and her violation of the February 5, 2019

decree. Father also claims that the trial court’s dismissal of the motion for

grandparent visitation and his petition to modify custody violated his and

Grandmother’s right of access to Indiana courts granted under the Indiana

Constitution.

[11] In its order dismissing the petition for grandparent visitation, the trial court

stated, it “determines that Father, who is an attorney licensed to practice in the

State of New Jersey, acted as counsel for the paternal grandparents in

connection with the filing of [the petition for grandparent visitation]” as well as

other filings purported to be filed by Grandmother pro se. Appellant’s App. Vol.

10 at 93-94. The trial court further ordered that “[a]ll pleadings, filings,

summonses, subpoenas and other documents pertaining the issue of

grandparent visitation are stricken” and Father was ordered “not to file any

materials in this case on behalf of, or to advance the concerns of, any person

other than himself without proper license and authorization.” Id. at 94.

Indiana courts have held that only persons duly admitted to practice law in this

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 7 of 10 state may appear on behalf of other persons. In re the Estate of Rondinelli, 692

N.E.2d 915, 918 (Ind. Ct. App. 1998), trans. denied. “Where a legal proceeding

has been instituted on behalf of another in a court of record by one not licensed

to practice law, the action should be dismissed.” Id. The trial court did not

abuse its discretion in dismissing the motion because it was clear that Father,

not being licensed to practice law in Indiana, was filing pleadings on behalf of

Grandmother. Further, Grandmother’s access to Indiana courts was not

violated as she is free to obtain an Indiana attorney to represent her interests

and seek relief.

[12] In its order dismissing Father’s petition for custody modification, the trial court

stated that, since the decree was issued, Father had filed “over 100 motions,

notices . . . , including multiple motions to correct error, for new trial

proceedings, appellate review and more, including a motion for selection of

special judge . . ., all aimed at reversing . . . the [d]ecree.” Id. at 96-98. The

trial court found that none of Father’s stated reasons concerning changed

circumstances in his petition “articulate[d] a sufficient basis, individually or in

the aggregate, to consider Father’s motion as viable” and that Father raised

matters that occurred prior to the dissolution hearing that should have been

brought up at the hearing. Id. at 97. The trial court further found that “[n]one

of the facts alleged by Father suggests that circumstances have so radically

changed that it is now in the best interest of the child, only six months later, to

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 8 of 10 remove him from Mother’s custody to place him in Father’s custody.” Id. at

98.

[13] We agree with the trial court’s findings and order. A party seeking

modification of custody bears the burden of demonstrating that the existing

arrangement is no longer in the best interests of the child and that there has

been a substantial change in one or more of the enumerated statutory factors.

Bailey v. Bailey, 7 N.E.3d 340, 343 (Ind. Ct. App. 2014). We review custody

modifications for an abuse of discretion and must grant latitude and deference

to trial courts in family law matters. Id.

[14] Most of Father’s stated reasons for changed circumstances focus on Mother’s

alleged violation of the Consent Order, which was issued in November 2015,

several years before the decree was issued on February 5, 2019. Father’s main

contentions for circumstances that have occurred since the decree was issued

concern his claim that Mother has refused his requests that the child be allowed

to visit Japan and the alleged failure of Mother to teach Japanese language and

culture to the child. The decree did not obligate Mother to allow the child to

visit Japan, but instead, stated, “Mother shall be reasonable in responding to a

request to allow the child to travel to Japan to visit extended family.”

Appellant’s App. Vol. 2 at 57. We agree with the trial court’s reasoning that

Mother’s decision to not allow the then-four-year-old child to travel to Japan

was not a sufficient basis to modify child custody or to conduct a hearing on

Father’s request. None of the facts alleged by Father in his petition suggested

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 9 of 10 that circumstances had so significantly changed that it was in the best interest of

the child, only six months after the decree was issued, to remove child from

Mother’s custody. Further, the trial court’s dismissal of Father’s petition did

not violate his right to access to Indiana courts. Nothing in the order stops

Father from filing future petitions with legitimate allegations of changed

circumstances.5 We, therefore, conclude that the trial court did not abuse its

discretion when it dismissed both the motion for grandparent visitation and

Father’s petition to modify child custody.6

[15] Affirmed.

Najam, J., and Brown, J., concur.

5 Far from being denied access to Indiana courts, Father has filed over a hundred pleadings with the trial court, sometimes filing daily pleadings, and has had the opportunity to appear in front of the court, both in person and telephonically, and has received responses and rulings on his pleadings. At the September 9, 2019 hearing on pending motions, the trial court stated that the enormity and frequency of Father’s filings was becoming “abusive” and that the parties should be more “temperate.” Tr. Vol. II at 37. Although Father asserts that he has been denied access to Indiana courts, it appears he is actually just displeased that he has not received his desired outcome. 6 Father also raises an issue that the trial court abused its discretion in dismissing these motions because it failed to provide reasonable notice of the September 9, 2019 hearing. However, the scheduling order for the hearing scheduled for September 9, 2019 stated the court intended to address, among other things, preliminary questions concerning the petition for grandparent visitation and the facilitation of parenting time. Appellant’s App. Vol. 10 at 64-65. After Father filed a motion to continue the hearing because he needed more time to prepare, the trial court issued another order, stating that it did not contemplate an evidentiary hearing occurring on September 9, 2019, and that if such a hearing becomes necessary, the hearing would be reset at a date and time convenient for all parties. Id. at 66, 85. Thereafter, the trial court dismissed the motions without a hearing. Id. at 93-94, 96-98. We, therefore, conclude that the trial court did not abuse its discretion because Father is incorrect in his assertion that there was a failure to provide him with reasonable notice of the September 9, 2019 hearing.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-2316 | May 12, 2020 Page 10 of 10