Ulrich Tibaut Houzanme v. Sally Jo Houzanme (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 14, 2015
• Docket: 49A04-1505-DR-434
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 14 2015, 8:38 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE APPELLEE PRO SE Ulrich Tibaut Houzanme Sally Houzanme Indianapolis, Indiana Tell City, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ulrich Tibaut Houzanme, October 14, 2015 Appellant-Respondent, Court of Appeals Cause No. 49A04-1505-DR-434 v. Appeal from the Marion Superior Court Sally Jo Houzanme, The Honorable James A. Joven, Appellee-Petitioner. Judge The Honorable Kimberly Dean Mattingly, Magistrate Trial Court Cause No. 49D13-0605-DR-19580

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015 Page 1 of 5 Case Summary [1] Ulrich Tibaut Houzanme appeals the trial court’s denial of his motion for

modification of child custody and support. We affirm.

Issue [2] Ulrich raises two issues, which we consolidate and restate as whether the trial

court had jurisdiction to hear his motion for modification.

Facts [3] Sally Houzanme and Ulrich’s marriage was dissolved in 2007, and Sally was

granted legal and physical custody of their child. Sally later filed a petition for

modification, which the trial court granted. Ulrich appealed the trial court’s

modification of his parenting time and child support. On appeal, we held that

we were unable to appropriately review the order because it lacked explanation

for deviations. Houzanme v. Houzanme, No. 49A02-0802-CV-131, slip op. p. 5

(Ind. Ct. App. Nov. 14, 2008). We remanded to the trial court for a more

specific order. Id. at 6. Following our order, Judge Patrick McCarty of Marion

Superior Court, Civil Division 3, entered an order in compliance with our

instruction.1 Judge McCarty then recused, and Judge S.K. Reid of Marion

Superior Court, Civil Division 13, was appointed as special judge. In 2013,

Judge James Joven replaced Judge Reid in Civil Division 13.

1 We were not provided with this order in the Appellant’s Appendix.

Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015 Page 2 of 5 [4] In September 2014, Sally filed a motion to determine the amount of child

support arrearage. In October 2014, Ulrich filed petitions for contempt against

Sally and a motion to modify. A hearing was held in October 2014 before

Magistrate Caryl Dill. At the hearing, Ulrich requested a continuance so that

he could obtain an attorney, and Magistrate Dill granted the request. Ulrich

was also ordered to reimburse Sally’s travel expenses and lost wages.

[5] In January 2015, the parties reached an agreed entry on parenting time. The

earlier hearing was continued several times, and in March 2015, Ulrich filed a

motion to modify child custody and support. A hearing was held on April 9,

2015, before Magistrate Kimberly Mattingly. Ulrich was represented by

counsel at the hearing and did not raise any issue regarding Magistrate

Mattingly presiding over the matter. On April 28, 2015, Judge Joven and

Magistrate Mattingly signed an order that, among other things, denied the

request to modify legal custody and modified child support. Ulrich now

appeals.

Analysis [6] Ulrich argues that Magistrate Mattingly did not have jurisdiction to hear his

petition for modification. According to Ulrich, under Indiana Trial Rule 79

and Asher v. Coomler, 994 N.E.2d 1283 (Ind. Ct. App. 2013), only the special

judge, now Judge Joven, could preside over the matter. In Asher, we held that

the magistrate improperly presided over a hearing instead of the special judge

over a party’s objection. Asher, 994 N.E.2d at 1286-87. Ulrich argues that his

due process rights were violated by Magistrate Mattingly presiding over the case Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015 Page 3 of 5 instead of Judge Joven. He asks that we reverse the order and remand for a

new hearing.2

[7] Sally responds that Ulrich’s argument is waived because he did not raise it to

the trial court.3 In support of her argument, Sally relies upon Floyd v. State, 650

N.E.2d 28 (Ind. 1994). In Floyd, our supreme court held: “The proper inquiry

for a reviewing court when faced with a challenge to the authority and

jurisdiction of a court officer to enter a final appealable order is first to ascertain

whether the challenge was properly made in the trial court so as to preserve the

issue for appeal.” Floyd, 650 N.E.2d at 32. “[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.” Id. “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.” Id. More recently, our supreme

court held that a post-conviction petitioner had waived his claim 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

2 Ulrich also seems to argue that Magistrate Mattingly erred with respect to the health insurance premiums, lost wages and travel expenses, and legal custody. However, Ulrich cites nothing in the record and cites no standard of review or authority. These contentions are waived for failure to make cogent argument. See Ind. Appellate Rule 46(A)(8)(a). 3 In his reply brief, Ulrich argues that we should not consider the Appellee’s Brief because it was untimely. However, Sally filed a motion to file the belated brief, which this court granted. Ulrich also argues that Sally failed to serve him with her Appellee’s Brief and that this court failed to serve him with its order granting Sally’s request to file a belated brief. However, Sally’s brief includes a certificate of service indicating that she served Ulrich with her brief. Ulrich does not dispute that he obtained Sally’s Appellee’s Brief and filed a timely Reply Brief or that he suffered any prejudice. Consequently, we will consider Sally’s arguments.

Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015 Page 4 of 5 case. Tapia v. State, 753 N.E.2d 581, 588 (Ind. 2001). The post-conviction

petitioner waived any claims in regards to the magistrate’s authority because he

failed to object. Id.; see also City of Indianapolis v. Hicks, 932 N.E.2d 227, 231

(Ind. Ct. App. 2010) (“Our supreme court has long held that defects in the

authority of a court officer, as opposed to the jurisdiction of the trial court itself,

to enter a final order will be waived if not raised through a timely objection.”),

trans. denied.

[8] We agree with Sally. Unlike in Asher, Ulrich did not timely object to Magistrate

Mattingly presiding over the hearing. Consequently, he waived any claim

regarding the magistrate’s authority.4

Conclusion [9] Ulrich waived any claim regarding Magistrate Mattingly presiding over the

matter. We affirm.

[10] Affirmed.

Kirsch, J., and Najam, J., concur.

4 Ulrich also argues that Magistrate Dill was not authorized to hear the matter in October 2014, but he did not timely object to Magistrate Dill presiding over that hearing either.

Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015 Page 5 of 5