In the Matter of the Paternity of: L.M.E. Gregory A. Edwards v. Toni Kelly (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2016
• Docket: 49A02-1512-JP-2075
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 30 2016, 7:03 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Nancy L. Green Camden & Meridew, P.C. Fishers, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of: June 30, 2016 L.M.E. Court of Appeals Case No. 49A02-1512-JP-2075 Gregory A. Edwards, Appeal from the Marion Circuit Appellant-Respondent, Court Paternity Division The Honorable Sheryl Lynch, v. Judge

Toni Kelly, Trial Court Cause No. 49C01-0709-JP-39810 Appellee-Petitioner.

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016 Page 1 of 5 Case Summary [1] Gregory Edwards (“Father”) and Toni Kelly (“Mother”) appeared at a

parenting time hearing and the trial court issued an order regarding parenting

time and child support, but declined to address Father’s oral motion regarding

custody modification. Father appeals, presenting a single re-stated issue of

whether the trial court abused its discretion by deferring consideration of

custody and directing Father to file a petition for modification. We affirm.

Facts and Procedural History [2] On September 12, 2014, Mother filed a petition to modify Father’s parenting

time. After an initial hearing, the parents mediated their dispute. They

appeared at a final hearing on November 5, 2015. Mother advised the trial

court that she was agreeable with the mediator’s recommendation, specifically,

that Father should have parenting time consistent with the Indiana Parenting

Time Guidelines (“Guidelines”).

[3] Father, by counsel, responded that he was not in agreement with that

recommendation. Counsel stated that Father now sought joint custody. The

trial court, noting the lack of a custody modification petition, advised the

parties that a petition was needed “for us to be prepared to talk about that …

everyone has to be on notice for what everyone is requesting.” (Tr. at 5-6.)

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016 Page 2 of 5 [4] The trial court issued an order that Father have parenting time consistent with

the Guidelines. This appeal ensued.1

Discussion and Decision [5] Father asserts that the trial court was not restricted to hearing evidence on

parenting time, and should have allowed him to proceed with his evidence in

support of custody modification. A trial court has wide latitude in determining

what is in the best interests of the child or children involved. Akiwumi v.

Akiwumi, 23 N.E.3d 734, 739 (Ind. Ct. App. 2014). We review its decisions in

family law matters for an abuse of discretion. Daisy v. Sharp, 901 N.E.2d 627,

629 (Ind. Ct. App. 2009). A trial court abuses its discretion when its decision is

against the logic and effect of the facts and circumstances before the court or is

contrary to the law. Id.

[6] Father observes that the best interests of the child is always paramount, and he

directs our attention to two cases in which the trial court ordered relief arguably

broader than that contemplated by the pleadings.

[7] In re the Paternity of Snyder, 26 N.E.3d 996 (Ind. Ct. App. 2015), was an appeal

from an order maintaining the status quo of therapeutic visitation for one hour

1 Mother has not filed an appellee’s brief. Thus, we review for prima facie error, that is, error “at first sight, on first appearance, or on the face of it.” Hamiter v. Torrence, 717 N.E.2d 1249, 1252. Still, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required. Mikel v. Johnson, 907 N.E.2d 547, 550 n.3 (Ind. Ct. App. 2009).

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016 Page 3 of 5 weekly, allowing the father communication via Skype, and denying the father’s

requests to change therapists and tell the child he is her biological parent. The

order was affirmed in part and reversed in part on appeal. Id. at 997. Legal

proceedings involving the parents had commenced when the mother obtained a

protective order against the father. See id. One year later, the father sought to

establish his paternity and the trial court ultimately ruled on several matters,

including child support, a request for a name change, tax exemptions, parenting

time, therapy, and parenting time restrictions.

[8] Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003), involved a case where the

father had asked the trial court to find the mother in contempt for withholding

child visitation. After a hearing, at which the mother defended the contempt

allegation by alleging the father had sexually abused their child, the juvenile

court suspended visitation pending a parental evaluation. Id. at 615. A panel of

this Court reversed the order for lack of a specific finding to support a parenting

time restriction. Id. at 618.

[9] It is unclear how these decisions support Father’s contention that the trial court

erred here. We agree with Father that the child’s interests are paramount and

that a trial court addressing a family law matter may be asked to consider

evidence not directly implicated by notice pleading.2 Undoubtedly, at times a

2 Under notice pleading, consistent with Indiana Trial Rule 8(A), a plaintiff essentially need only plead the operative facts involved in the litigation. Grzan v. Charter Hosp. of N.W. Ind., 702 N.E.2d 786, 794 (Ind. Ct. App. 1998). Whether a complaint sufficiently pleads a certain claim turns on whether the opposing party has been sufficiently notified so as to be prepared to meet the claim. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016 Page 4 of 5 trial court will find that expansion of the issues identified in pleadings or

motions is appropriate to immediately address the best interests of a child.

However, the trial court should not, as a matter of course, conduct the

proceedings in a manner that deprives a parent of notice and opportunity to

respond. As we observed in reversing a trial court’s sua sponte modification of

physical custody in Bailey v. Bailey, 7 N.E.3d 340, 345 (Ind. Ct. App. 2014):

The parties never discussed or argued whether there had been a change of circumstances related to any of the statutory factors warranting a custody modification or whether there was a change in the children’s best interests. Mother had no warning that she had to make an argument that such circumstances were lacking or that a change was not in the children’s best interests or that she had to present evidence on those issues.

[10] Here, the trial court did not deprive Father of the opportunity to seek custody

modification. Rather, the trial court directed Father to file a petition, such that

Mother would be afforded notice and an opportunity to prepare her evidence.

Indeed, it would have been much more efficient for Father to simply file a

modification petition than to perfect an appeal. He has demonstrated no abuse

of discretion by the trial court.

[11] Affirmed.

Bradford, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016 Page 5 of 5