Family Law Case Updates

In the Matter of K.G. (December 6, 2022) (Gender Marker / Birth Certificate Case)

HELD: Trial court correctly denied Mother’s petition to amend Child’s birth certificate to change the Child’s gender marker because it lacked the statutory authority to do so. However, a parallel request by Mother to legally change Child’s name, which was also denied by the trial court, was remanded for findings explaining why the name change was not in Child’s best interests.

FACTS AND PROCEDURAL HISTORY:

Child was born in 2009. In 2021, Child informed Mother that Child identified as transgender. Mother and Child began working with medical and mental health professionals “to make sure that [Child] knows what exactly that means and that truly is who [Child] is.”

Later in 2021, Mother filed petitions to change Child’s name and gender marker on Child’s birth certificate. At a hearing, the trial court received testimony from Mother, as well as letters from Child’s doctor and social worker, in support of the name and gender marker changes.

Questions from the bench suggested the trial court believed there was no harm in waiting until Child was older to make these changes, and then denied both petitions, concluding that Mother “has failed to prove that it is in this minor child’s best interest to grant the petitions.” Mother appealed.

At issue is Indiana Code 16-37-2-10, which is the statutory mechanism to make additions or corrections to birth certificates. The panel of the Court of Appeals deciding the instant case acknowledged that other panels have interpreted the statute to provide a mechanism by which a parent can seek to have a child’s gender marker changed. But this panel disagreed with that interpretation. “[T]he statute has nothing to do with amending a birth certificate to reflect a parent’s desire to change a minor child’s gender to reflect their gender identity and presentation.” Thus, because the trial court wholly lacked the authority to grant a change of Child’s gender marker, it did not err by denying Mother’s petition.

However, Mother also filed a request to change Child’s name. “In deciding on a petition to change the name of a minor child, the court shall be guided by the best interests of the child . . . “ Ind. Code 34-28-2-4(d). In denying Mother’s petition to change Child’s name, the trial court furnished no findings in support of its determination. “On remand, we instruct the trial court to make additional factual findings explaining its decision, focusing specifically on the statutory best-interests factors . . . ..”

The trial court’s denial of Mother’s petition for a change to Child’s gender marker was affirmed; but its denial of Mother’s petition to change Child’s name was remanded for additional findings in support of its decision.

LaMotte v. LaMotte (November 30, 2022)

HELD: A party’s due process rights are violated if a different trial court judge issues a Decree and its related orders, not the judge who personally heard the witnesses and evidence.

FACTS AND PROCEDURAL HISTORY:

Mother and Father married in 1995, had three children together, and Mother filed her petition for dissolution of marriage in 2018. Mother requested findings and conclusions.

In late 2020, Magistrate held a two-day final hearing that included receiving evidence on custody of the children, parenting time, division of the marital estate, and a claim for spousal maintenance. Magistrate took the matter under advisement.

Before Magistrate issued findings and conclusions, Magistrate left the bench. Afterwards, a dispute arose between the parties as to whether the new Presiding Judge should fully rehear the case, or issue an order based upon a review of the existing final hearing record. Presiding Judge elected to have an additional hearing, but it would be limited to custody and parenting time issues, including an updated GAL report. Mother unsuccessfully objected and requested a new hearing on all issues.

Two months later, Presiding Judge issued an order dividing the marital estate, denying Mother’s request for maintenance, and awarding custody of the children to Father. After an unsuccessful motion to correct errors, Mother appealed.

Relying upon the 2013 case of In re: DP, which involved a similar set of circumstances, the Court of Appeals concluded “that Mother’s due process rights were violated. [Presiding Judge] could not have properly resolved questions of credibility and weight of the evidence from the November 2020 hearing because she did not have an opportunity to hear that evidence or observe the demeanor of those witnesses.”

The Presiding Judge’s orders were reversed, and the matter remanded for a new hearing on all issues.

[Apparently, Father remarried while this appeal was pending, putting him in the unusual position, once the Court of Appeals reversed the divorce decree, of being married to two people at the same time.]

In re: the Adoption of A.G. (November 22, 2022)

HELD: Trial court did not err when it dispensed with Mother’s consent to adoption of Child based upon its conclusion that Mother failed to provide financial support to Child during the relevant times despite being able to do so.

FACTS AND PROCEDURAL HISTORY:

Child was born to Mother in 2013. Father subsequently died. In 2016, Child was removed from Mother’s care by DCS due to Mother’s use of illegal drugs. Child was placed with Guardians, which proceedings included a child support order for Mother to pay Guardians child support of $74 per week. Child remained with Guardians thereafter, except for a brief period in 2019 when Mother successfully terminated the guardianship, only to be arrested for DWI later that evening, whereupon Child was returned to Guardians.

In 2021, Guardians filed a petition to adopt Child. Mother contested the adoption. After a hearing, the trial court concluded that it could dispense with Mother’s consent based upon a finding that Mother had, without justifiable cause, failed to provide support for Child while able to do so. The trial court also later found that the adoption would be in the best interests of Child. Mother appealed.

The Court of Appeals concluded that the trial court was within its discretion in finding that Mother’s lack of financial support of Child permitted the trial court to dispense with Mother’s consent. Also, Mother’s argument on appeal that the adoption was not in Child’s best interests was an invitation to reweigh the evidence, which the Court of Appeals declined to do.

The trial court’s adoption order was affirmed.

Sims v. Sims (November 16, 2022)

HELD: Indiana trial court erred when it ruled that Wife’s property division claims were barred by res judicata, where the parties’ marriage was previously dissolved by a court in Germany, but the German court did not divide the parties’ property, citing its lack of jurisdiction to do so.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife married in 1997. They moved throughout the United States and abroad due to Husband’s work as a defense contractor. The parties moved to Germany in 2018.

In 2019, Wife filed a petition for dissolution of marriage in Germany. The German court dissolved the parties’ marriage but agreed with Husband’s argument that the German court lacked jurisdiction to divide the parties’ property.

Husband had moved back to Indiana in 2020, resulting in Wife filing a petition in Johnson County asking the trial court to assume jurisdiction of the dissolution and divide the parties’ property. The trial court denied Wife’s petition, finding that the doctrine of res judicata barred it from dividing the parties’ property because the German court (1) was a court of competent jurisdiction, and (2) had rendered a decision on the merits of Wife’s request for division of marital property. Wife appealed.

The Court of Appeals agreed with Wife that res judicata was inapplicable because the German court had not ruled on the merits of property division. “[T]he German court did not render a judgment on the merits of that issue.” The trial court’s order was reversed and remanded for further proceedings to divide the parties’ marital estate.

In re: the Paternity of A.R.S. (November 16, 2022)

HELD: Trial court did not abuse its discretion when it modified custody in favor of Mother, where the evidence indicated that Father had not taken claims of sexual abuse by Daughter with adequate seriousness.

FACTS AND PROCEDURAL. HISTORY:

Daughter was born to Mother and Father in 2012, and paternity was established the following year. Initially, the parties shared legal custody, and Father had primary physical custody of Daughter subject to Mother’s IPTG parenting time.

In 2021, Daughter reported that she had been sexually abused by Cousin, and a DCS investigation followed. Mother filed a petition to modify custody, parenting time, and child support. During several days of hearings, Father testified that he believed the claims of sexual abuse “[t]o some extent, yes,” but that there was a “consensual” nature to them.

Following the hearings, the trial court stated from the bench that its intention was to retain joint legal custody, but with Mother as the final decision maker; Mother would have primary physical custody, subject to Father’s IPTG parenting time with overnights. The trial court subsequently issued a full order consistent with those terms. Father appealed.

Reviewing the record, the Court of Appeals concluded that the trial court’s order was not an abuse of discretion. The Court concluded that the evidence supported the trial court’s determination, including because Daughter was five years older than she was for the original custody determination, the consequences of Daughter’s sexual abuse, and the trial court’s concerns that Father was not handling the abuse with requisite seriousness. In effect, Father was asking the Court to reweigh the evidence, which the Court of Appeals would not do.

The trial court’s order modifying custody was affirmed.

McGhee v. Lamping (November 16, 2022)

HELD: Trial court acted within its discretion when it denied Mother’s Trial Rule 60(B) motion for relief from judgment on multiple child support arrearage orders from 2018 and 2019, where Mother’s TR 60(B) motion, filed in September 2021, failed to raise any new issues that were not litigated in 2018 and 2019.

FACTS AND PROCEDURAL HISTORY:

Mother and Father divorced in 2007, with two children. Extensive litigation between them followed, dealing mainly with the payment of the children’s uninsured medical expenses.

This litigation resulted in a 2018 order requiring Mother to pay Father $19,880 for uninsured medical expenses and attorney’s fees, which Mother did not appeal. In 2019, another order followed, requiring Mother to pay additional uninsured medical expenses and attorney’s fees. Again, Mother did not appeal.

In 2020, Mother filed motions seeking to set aside the 2018 and 2019 orders based upon an argument that the trial court lacked jurisdiction to enter them because Father had not filed a motion for post-secondary educational expenses prior to the children’s 19th birthday. While that was pending, in September 2021, Mother filed a motion for relief from judgment, pursuant to Trial Rule 60(B)(8), which is the catch-all subsection of Trial Rule 60(B). Following a hearing, Mother’s motions were denied, from which she appealed.

The Court of Appeals affirmed the trial court’s denial. “First, it is readily apparent from a reading of Mother’s motion for relief from judgment that she has not raised any new issues. Rather, the essence of her motion is that based on the facts as set forth in the original hearings, the trial court’s January 2018 and April 2019 decisions were erroneous. . . Mother has made no showing of exceptional circumstances justifying relief.”

Second, to the extent that Mother was claiming that Father had made false claims leading up to the 2018 and 2019 orders, that would motion would fit under Trial Rule 60(B)(3) for fraud. However, a TR 60(B)(3) motion must be brought within one year of the underlying judgment, which Mother did not bring timely.

The trial court’s order denying Mother’s motion for relief from judgment was affirmed.

Lyons v. Parker (September 30, 2022)

HELD: Trial court did not abuse its discretion when it modified primary physical custody from Mother to Father where the evidence established that Children were falling behind academically while in Mother’s custody, and Mother was struggling to provide for some of the Children’s basic needs, like clean clothes and adequate grooming.

HELD: Where the parents lived about an hour from each other, it was not an abuse of discretion to require Mother to exercise her midweek parenting time in the city where Children lived with Father during the week.

FACTS AND PROCEDURAL HISTORY:

Twin girls (“Children”) were born to Mother in 2014. Paternity was subsequently established. Initially, the parties shared joint legal custody with an equal time parenting schedule.

Mother lives in Whiteland and Father lives about an hour away in Greencastle. As the Children approached school age, Mother was granted primary physical custody so that the Children could attend school in Whiteland.

The Children both struggled academically. Mother failed to communicate with the Children’s teachers. The Children regularly came to school in ill-fitting and dirty clothing, unbathed and with unkempt hair. All of the communication with the school appeared to come from Father, even though he was not the primary custodial parent. Father reached out to the teachers to determine what he could do on his alternating weekends to help the Children academically.

Eventually, in 2020, Father filed a petition to modify custody, parenting time, and child support.

At the hearing, a GAL who evaluated the matter recommended that Father have primary physical custody of the Children. The GAL concluded that “Mother either has no interest in parenting these girls or she is overwhelmed by all of her responsibilities.” After some procedural delays to the resolution of the case, in early 2022 the trial court modified custody in favor of Father. Mother was given IPTG parenting time, with a proviso that Mother must exercise her midweek parenting time in the Greencastle area. Mother appealed.

The Court of Appeals noted that the record supported conclusions that the Children struggled while with Mother, but comparatively flourished while with Father. There was evidence of this provided by the GAL, the Children’s teachers, and others. The GAL had also stated that the Children testified that they wanted to live with Father. Thus, the trial court’s modification of custody was not clearly erroneous.

Mother also objected to the requirement that she exercise her midweek parenting time in Greencastle. Mother argued that the trial court could not include this restriction in the absence of finding that doing otherwise might endanger the Children’s health or emotional development. The Court of Appeals rejected Mother’s argument, stating that Mother was conflating “parenting time” and “travel limitations,” and that the imposition of travel restrictions did not require the trial court to make any findings of endangerment, unlike a restriction of parenting time to less than Guidelines.

The trial court’s order was affirmed.

In re: the Paternity of E.P. (September 6, 2022)

HELD: Trial court erred when it awarded the parties joint legal custody of Child after making specific findings that the parties have an inability to cooperate and agree on Child’s best interests, that they have hostile and turbulent confrontations in front of Child, and that they are unable to communicate in a constructive fashion.

FACTS AND PROCEDURAL HISTORY:

Child was born to Mother and Father in 2019. Before Child’s birth, Mother sought and obtained a protective order against Father based upon allegations of aggressive behavior by Father. Disputes about parenting time followed Child’s birth, after which Father filed a motion to establish parenting time and for joint legal custody.

Following a series of six hearings conducted by the trial court, Father requested joint legal and physical custody. Mother requested sole legal custody and primary physical custody.

The trial court’s order followed. Neither party requested findings, but the trial court made some findings sua sponte. Those findings included that the parties “have demonstrated an inability to cooperate and agree on what is in [Child’s] best interests,” that the parties’ confrontations in front of Child have been “turbulent and even hostile,” and that the parties “are currently unable to communicate with each other in a constructive fashion.” Nevertheless, the trial court ordered joint legal and physical custody of Child.

Following an unsuccessful motion to correct errors, Mother appealed.

Mother argued that the trial court’s findings did not support its judgment, and the Court of Appeals agreed. The Court reasoned that the trial court’s specific findings of inability to communicate and cooperate between the parties precluded an award of joint legal custody. The joint legal custody award was reversed and remanded to the trial court “to enter an award of sole legal custody for either Father or Mother.”

The trial court’s order was reversed and remanded.

Herber v. Bunting (August 26, 2022)

HELD: A trial court’s order, issued two years after the Decree, that articulated procedural details for the sale of the Marital Residence, was not an impermissible modification of the Decree provision that the Marital Residence would be sold if Wife was unable to refinance it within six months.

FACTS AND PROCEDURAL HISTORY:

The parties’ marriage was dissolved in 2019. The parties’ agreed-upon Decree included a common term that awarded the Marital Residence to Wife, subject to its indebtedness, and further required Wife to refinance the indebtedness out of Husband’s name within six months. The Decree continued that, if Wife failed to do so, Husband “may petition the court to force sale of the marital residence.”

Two years later, Husband moved the trial court to force the sale of the Marital Residence, citing Wife’s failure to refinance. Following a hearing, the trial court issued an order with findings of Wife’s failure to refinance and set forth a process for selling the Marital Residence. The process set forth in the trial court’s order included: (1) Husband would select the listing agent; (2) the listing agent would determine the list price; (3) any offer within 5% of the list price would be accepted; and (4) an allocation of the eventual net sale proceeds.

Wife filed a motion to correct errors, which was partly successful in that the trial court instead permitted Wife to select the listing agent and, if she failed to do so, a Commissioner would be appointed to effectuate the sale.

Wife nevertheless appealed, arguing that, even after the order on Wife’s motion to correct errors, the trial court’s order still constituted an impermissible modification of the original Decree.

The Court of Appeals noted that “[a] dissolution court can interpret and effectuate a dissolution decree” and “resolve . . . questions of interpretation and enforcement . . . .” The Court continued: “When the parties negotiated the terms of the agreement they could have agreed to details about the sale of the marital residence. But since they did not, the trial court properly assumed its role to interpret, consummate, and enforce the parties’ intent by ordering specific details to bring about the sale. Thus, the trial court did not modify the parties’ agreement.”

The Court of Appeals also granted Husband’s request for appellate attorney’s fees, concluding that the purpose of Wife’s appeal was “to delay the sale of the marital residence.”

The trial court’s order on the sale of the Marital Residence was affirmed, and the matter was remanded for a determination of Husband’s reasonable appellate attorney’s fees.

Shelton v. Hayes (June 20, 2022) (Grandparent visitation case)

HELD: Because neither the Grandparent Visitation Act nor the statute authorizing the appointment of a GAL provides for the appointment of a GAL in a grandparent visitation proceeding, a grandparent cannot request, and a trial court cannot appoint, a GAL over the objection of a parent.

HELD: Where a GAL was erroneously appointed, it was appropriate to remand the matter to the trial court to make a grandparent visitation decision, disregarding the GAL’s testimony and report.

FACTS AND PROCEDURAL HISTORY:

Mother was married to, and had Child with, Grandfather’s son. In 2019, Grandfather’s son passed away. Grandfather was very involved with Child, as he and Mother lived at Grandfather’s residence. Mother would eventually become involved in a new relationship, and she and Child moved out of Grandfather’s residence.

In September 2020, Grandfather filed a petition for joint custody of Child. That resulted in Mother and Grandfather reaching a mediated agreement that provided for Grandfather to have visitation with Child four times per month, one of which would be a full weekend. The trial court accepted the agreement and entered it as an order.

The following year, Grandfather filed a contempt petition, seeking Mother’s compliance with the visitation order; in response, Mother filed a petition to modify, alleging that a substantial change in circumstances rendered Grandfather’s visitation order no longer in Child’s best interests.

Grandfather petitioned for the appointment of a GAL, which was granted over Mother’s objection. The GAL ultimately concluded that modifying Grandfather’s visitation order was not in Child’s best interests, and the GAL subsequently testified as to details underlying that conclusion at the hearing. Following the hearing, the trial court denied Mother’s petition to modify the grandparent visitation order, and held Mother in contempt for not complying with it previously. Mother appealed.

Relying on the applicable statutes and prior case law, the Court of Appeals concluded that the trial court erred when it granted Grandfather’s GAL petition over Mother’s objection. “[T]he law currently provides no authority for grandparents to request visitation evaluations[.]” The Court of Appeals concluded that, because the trial court’s order made it clear that it relied upon the GAL considerably, the appropriate remedy was remand, and for the trial court to reweigh its decision in disregard of the GAL report and testimony.

The denial of Mother’s petition to modify the grandparent visitation order was reversed and remanded for further proceedings.

Hahn-Weisz v. Johnson (June 15, 2022) (Third party custody case)

HELD: The trial court erred when it granted Father custody of Child, when Child had been living with Grandmother for years. Grandmother had established by clear and convincing evidence that it was in Child’s best interest to remain in her custody, overcoming the strong presumption in favor of a natural parent.

FACTS AND PROCEDURAL HISTORY:

Child was born to Father and Mother, who were married, in 2012. When the parties separated in 2015, Child stayed in Father’s care. The following year, Child reported being molested in Father’s home by her two half-brothers.

Child then began living with Grandmother. During Father and Mother’s subsequent dissolution proceedings, Grandmother intervened. In 2020, as part of those proceedings, the parties agreed that Grandmother would have sole legal and physical custody of Child.

In 2021, Father filed a petition to modify custody. At a hearing, the trial court received testimony from Father and Grandmother. Later, the trial court issued an order that would transition custody to Father, with Mother having parenting time opportunities and Grandmother given visitation of one weekend per month. The trial court’s order appeared to focus on the strong presumption in favor of natural parents, and that the brothers who had sexually abused Child previously no longer resided at Father’s residence. Grandmother appealed.

The Court of Appeals reviewed the legal standards for placing custody of a child with a third party over a natural parent. Here, the trial court’s order did not undertake a “best interests” analysis. Rather than remanding the matter, the Court of Appeals undertook its own analysis and concluded that Grandmother met her burden by presenting clear and convincing evidence that modification of custody to Father was not in Child’s best interests.

The trial court’s order was reversed.

Israel v. Israel (May 16, 2022) (Non-Disparagement Clause Case)

HELD: A divorce court may not impose upon parents a Non-Disparagement Clause that extends beyond ordering the parents not to disparage each other in front of the parties’ children. The provision in this case overstepped that limitation by also proscribing disparagement of each other to “friends, family members, doctors, teachers….” etc.

FACTS AND PROCEDURAL HISTORY:

The parties married in 2012, had one child together, and Wife filed a petition for dissolution in 2019. Following a contested final hearing, the trial court issued orders for custody, parenting time, and property division. The trial court’s Decree also included a Non-Disparagement Clause as follows:

The parties shall refrain from making disparaging comments about the other in writing or conversation to or in the presence of [Child], friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone. Disparaging remarks include[e], but are not limited to, negative statements, criticisms, critiques, insults[,] or other defamatory comments. The parties shall not say or do anything or allow a third party to say or do anything about the other party in [Child’s] presence that may estrange [Child] from the other party or impair his regard for the other party. The parties shall not involve [Child] in matters that are adult matters and that solely involve the parents or the other parent.

Father’s appeal included a challenge of the Non-Disparagement Clause.

The Court of Appeals noted the First Amendment and prior restraint implications of the Decree’s Non-Disparagement Clause. To be constitutionally valid, prior restraints on speech must further a compelling interest. The Court concluded, based upon precedent, that there is a compelling interest in protecting children from being exposed to disparagement between their parents. However, the remaining breadth of this Decree’s Non-Disparagement Clause, involving disparagement outside the presence of the child, “is an unconstitutional prior restraint and must be stricken.”

The matter was remanded to the trial court to modify the Decree’s Non-Disparagement Clause accordingly.

The opinion was silent on whether an order that contained a broad Non-Disparagement Clause that was agreed to by both parties could be enforced by the trial court.

In the Matter of the Change of Gender of OS (May 2, 2022) (Change of Gender Marker Case)

HELD: In a three-opinion, two-judge majority decision, the Court of Appeals holds that Indiana statute does not confer upon Indiana courts the authority to change the gender marker on a birth certificate. The decision leaves the Indiana Court of Appeals internally divided over the resolution of this issue.

FACTS AND PROCEDURAL HISTORY:

Child was born in 2013 and was assigned male at birth, which was reflected on Child’s birth certificate. However, as Child grew up, Child began to increasingly identify as female. Child was treated as female at home, and, after the family sought the counsel of a licensed clinical psychologist, the parents began to allow Child to present as female in every aspect of life. While Child’s school was generally supportive of Child, the school nevertheless required Child to be listed as male in school records due to the assignment on Child’s birth certificate. This prompted Mother, in 2020, to file a petition to change the gender marker on Child’s birth certificate.

Mother’s petition was summarily denied, the appeal from which was consolidated into the 2021 Matter of A.B. case. Therein, a two-judge majority held, as a matter of first impression, that a parent has the authority to petition for a change of gender marker on a child’s birth certificate and, further, the standard to be applied to evaluation of the proposed change was best interests of the child. Judge Pyle dissented in that case on the basis that Indiana statute does not confer such an authority upon Indiana trial courts.

On remand, Mother’s petition was again denied, this time on the basis that the trial court could not find that the change would be in Child’s best interests. Mother again appealed.

On this second appeal, Mother argued that the trial court abused its discretion because the evidence presented overwhelmingly established that Child’s best interests would be served by a change of the gender marker. Judge Altice’s opinion did not get to an evaluation of Mother’s arguments on the merits, instead short-circuiting Mother’s appeal by adopting a position similar to Judge Pyle’s dissent in Matter of A.B., that the trial court lacked any authority to change birth certificate gender markers, regardless of the evidence presented by Mother. He concluded: “I urge the [Indiana] Supreme Court to speak on this matter, which has divided this court and resulted, unfortunately, in unpredictability for petitioners who earnestly desire a remedy.”

Judge Bailey concurred in result but wrote separately. He agreed that Indiana courts lacked the statutory authority to change birth certificate gender markers. However, he wrote separately to articulate his opinion that there should be an equitable path to remedy harm in these circumstances but, lacking a statutory framework to evaluate a child’s best interests, an equitable action cannot accomplish the desired objective.

Finally, Judge Mathias, dissenting, wrote that, while a statutory framework for addressing these cases would be ideal, Indiana trial courts nevertheless have a “well-established constitutional and equitable power . . . to remedy a wrong in the absence of a statutory authority to the contrary.” Further, he wrote that, in the instant case, the trial court’s denial of the change of gender marker petition was wholly unsupported by the record and, thus, clearly erroneous. He would have reversed the trial court’s order and remanded the case with instructions to grant Mother’s petition.

Estate of Estridge v. Lana Ann Taylor (April 18, 2022) (Annulment Case)

HELD: Trial court did not abuse its discretion in denying an Estate’s petition to annul a marriage between the Decedent and Wife, concluding that evidence supported the trial court’s findings that the Decedent was mentally competent at the time the marriage was solemnized.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife first met working together as firefighters / EMT-paramedics in 2011. Husband was diagnosed with cancer in 2015, which information he shared with Wife. The parties began dating the following year. The parties became engaged in 2018, but no wedding date was set due to Husband’s then-upcoming cancer surgery. By 2019, Husband’s cancer had become so advanced that he was advised to stop treatment and pursue palliative care.

Husband was discharged wearing a fentanyl patch. He left the hospital with several firefighter friends, including Wife. On the ride home, Husband conversed with others in the vehicle and looked at photographs. At some point during the ride, Wife asked Husband if he still wanted to get married, and he replied affirmatively. The parties stopped at a Firefighters Credit Union, where a notary witnesses Husband’s application for a marriage license. Husband also signed a beneficiary designation of his firefighter’s pension, listing Wife as his spousal beneficiary.

Late that afternoon, the parties went to the City-County building, where a small ceremony was officiated by the firefighter Chief. Husband died four days later.

Husband’s Estate quickly filed a petition to annul the marriage, citing fraud and lack of capacity by Husband. A bench trial followed, at which expert testimony was presented by both parties. Wife’s expert testified that, after reviewing medical records, deposition testimony describing the drive home from the hospital, as well as the video recording of the wedding ceremony, that Husband was competent at the time of the ceremony and understood the nature of the marriage contract.

The trial court denied the Estate’s petition for annulment, from which the Estate appealed.

The Court of Appeals noted that the burden rests on the challenger to prove that the party was incapable of understanding the marriage contract. “The presumption in favor of the validity of a marriage…is one of the strongest known.” Finding that the evidence in the record supported the trial court’s decision, the denial of the petition to annul was affirmed.

Cruz v. Cruz (April 4, 2022) (Annulment / Service of Process Case)

HELD: A petition for annulment is a distinct cause of action from a petition for dissolution. Therefore, if a petition for annulment is filed after a petition for dissolution, the annulment petition must be served upon the Respondent by summons as provided in Trial Rules 4 and 5. Because that did not occur here, the trial court’s granting of the annulment was reversed.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife married in 2005 and separated in 2018. Husband did not see or speak to Wife again before she filed a petition for dissolution in April 2019. Wife served the petition by publication, asserting that Husband was living in an unknown location in Guadalajara, Mexico.

Several months later, Wife received information that Husband’s previous marriage had not been dissolved at the time of the parties’ marriage. In the dissolution action, Wife filed a petition for annulment. The annulment petition was not served upon Husband as a new cause of action.

At a subsequent hearing at which Husband did not appear, Wife presented untranslated documents from Mexico, purporting to show that Husband’s prior divorce had not been granted at the time of the marriage. Presumably based upon this, the trial court granted Wife’s request for an annulment.

Nine months later, Husband filed a Trial Rule 60(B)(6) motion to set aside the annulment, reciting that he had never been served. Husband objected to the annulment out of fear that the allegations of fraud therein could jeopardize his immigration status. After a hearing, the trial court agreed with Wife that Wife’s annulment petition was merely an amendment to her dissolution petition, and thus new service was not required. Husband appealed.

The Court of Appeals outlined that an annulment proceeding and a dissolution proceeding are two distinct causes of action. Therefore, proper Trial Rule 4 service on Husband was required for the annulment petition. “We conclude that the trial court never obtained personal jurisdiction over Husband as to the annulment petition because he was not served with it as required by Indiana Trial Rules 4 and 5. Given this lack of jurisdiction, the trial erred in entering a decree of annulment.”

The trial court’s decree of annulment was reversed, and the matter remanded for further proceedings. In dicta, the Court suggested that, given the facts alleged by Wife, Wife should have sought a declaratory action that the marriage was void due to bigamy instead of seeking an annulment.

Sanford v. Wilburn (March 31, 2022) (Custody Modification Case)

HELD: Trial court erred when it modified custody to Mother only a short time after a previous judge, sitting in the same matter, modified custody to Father, and the subsequent modification back to Mother did not articulate a substantial change in the best interest factors since the previous modification.

FACTS AND PROCEDURAL HISTORY:

Child was born to Mother and Father in 2007. Mother and Father’s marriage was dissolved in 2011, pursuant to which the parties shared joint legal custody, with Mother having primary physical custody.

In 2020, Father successfully petitioned to modify primary physical custody of Child to him. The trial court granted Father’s petition based upon numerous articulated findings, including that Child was struggling in school, in part because Mother did not take Child to school; Mother changed Child’s school without telling Father; Mother withheld parenting time from Father; and, that Father would provide a more stable environment.

Weeks later, Mother filed a motion for change of judge, followed by a petition to modify custody back to Mother. Several months later, the new judge heard the case, and granted Mother’s requested change of primary physical custody back to Mother. The basis of the change back was essentially that Child was not happy and the transition to living primarily with Father was not going well. Father appealed.

The Court of Appeals noted the deference it affords to a trial court, especially in custody determinations. However, “we must reverse the trial court’s most recent modification order because there is no evidence that there was a substantial change in circumstances justifying a change of custody.” The Court of Appeals continued: “A parent cannot undo a custody modification order by waiting a few weeks and filing a new modification in front of a new judge. There must be substantially changed circumstances related to the statutory consideration for child custody when compared to those reflected in the previous modification order, and the second judge’s findings here do not support such a conclusion.”

The trial court’s order modifying primary physical custody back to Mother was reversed.

T.J. v. K.H. (September 7, 2021) (Order of Protection)

[NOTE: The original Court of Appeals opinion included a typo that resulted in reporting that the incident of domestic violence that led to the Order of Protection happened 20 years ago. The opinion has since been corrected to state the domestic violence incident occurred in 2020, not 2000.]

HELD: Trial court acted within its discretion when it granted an order for protection in favor of Child, and against Mother’s ex-boyfriend.

FACTS AND PROCEDURAL HISTORY:

Mother has 6-year-old Child with Father, as well as a two-year-old with Jones. In 2020, while Mother had both children in her care and Jones was present, an incident occurred with the children that resulted in Jones being charged with domestic battery resulting in injury to a person under age 14.

Two days after the incident, Father filed, on Child’s behalf, a petition for an order of protection against Jones, which the trial court granted ex parte. Following a hearing requested by Jones, the trial court noted defects in the original petition, but ruled the order of protection would stay in place unmodified. Jones appealed.

Jones first argued that he was not a “family or household member” of Child pursuant to Ind. Code 34-26-5-2(c). However, the Court concluded that Jones’ domestic proximity to Child, even if Jones and Child are not related, satisfied the statute.

The Court of Appeals also rejected Jones’ argument that he did not commit domestic violence because he claimed the resulting injuries arose from a fight between the two children, not caused by Jones. The Court of Appeals considered this an invitation to reweigh the evidence, which it declined.

The order of protection against Jones was affirmed.

In re: the Change of Name and Gender of H.S. (August 30, 2021) (Birth Certificate Gender Marker)

HELD: Trial court did not err when it granted a request by Mother, made on behalf of her 15-year-old Child, for a name change, but then denied the request for a gender marker change.

FACTS AND PROCEDURAL HISTORY:

Mother filed a petition for change of name and gender marker on behalf of her 15-year-old transgender son. The trial court held a hearing, at which it received testimony from Mother, Father, and Child, each of whom advocated for the change of name and gender marker. Mother also submitted into evidence a letter from Child’s physician and Child’s counselor.

In its subsequent order, the trial court granted the requested name change. However, as to the requested change of gender marker, the trial court noted that it applied a “best interests” standard to its decision, but, based upon the absence of expert testimony or authenticated documents, Mother failed to prove that the change of gender marker would be in Child’s best interests. Mother appealed.

On appeal, Mother essentially argued that an uncontested request to change a child’s gender marker should be presumed to be in the child’s best interests and granted.

A divided panel of the Court of Appeals affirmed the trial court’s denial. The Court reviewed the recent case law history on this subject, which is that, in the absence of guidance by the General Assembly, an adult’s request for a change of gender marker should be granted if “made in good faith and not for fraudulent or unlawful purposes.” However, for a child, the standard is the “best interests” standard. The question raised by the instant case is what evidentiary burden should be placed upon the movant to satisfy the best interests standard.

Mother urged the Court of Appeals to adopt the position that a parent’s unopposed petition creates a presumption of best interests. The Court of Appeals rejected Mother’s argument, stating that an unquestioned application “would ignore the State’s interest in the child’s wellbeing.” Therefore, because Mother did not present evidence as to Child’s best interests, the trial court did not err when it denied the petition for change of gender marker.

Judge Pyle wrote separately to concur with the result, but to reaffirm his position, expressed previously in the Matter of A.B. case, that no statutory authority exists for the judiciary to “invent a procedure for changing a minor child’s gender marker to reflect gender identity and presentation.”

Judge Crone followed with a lengthy dissent, concluding that the record developed before the trial court—including the two letters, one from a physician and one from a licensed mental health counselor—supported the change of gender marker. He also referenced the U.S. Supreme Court’s Troxel case, which noted that there “is a presumption that fit parents act in the best interest of their children.” Judge Crone would have reversed and remanded the trial court’s denial of the change of gender marker, as “the failure to do so was a blatant abuse of the trial court’s discretion.”

Haggarty v. Haggarty (August 17, 2021) (Premarital Agreement Case)

HELD: Trial court did not err when it determined that Husband breached a provision of the parties’ Premarital Agreement by not maintaining a joint account with funds for paying monthly ordinary living expenses, and ordering that Husband pay Wife approximately $206,000 arising from that breach.

HELD: Trial court also acted within its discretion when it denied Wife’s effort to set aside Releases of Judgment that Wife had previously filed and, further, ordered Wife to pay Husband’s attorney’s fees related to those motions, even though the Premarital Agreement included an attorney fee waiver by Husband.

FACTS AND PROCEDURAL HISTORY:

Prior to the parties’ marriage in 2000, they entered into a Premarital Agreement. The Premarital Agreement generally provided that, in the event of a divorce, property would be divided between the parties based upon how it was titled, with only jointly-titled property divided between them, equally. The Premarital Agreement also provided: “[Husband] further agrees to maintain a checking account titled jointly with [Wife] with an average balance sufficient to pay ordinary living expenses for a month.”

In 2018, Wife filed a petition for dissolution of marriage, as well as a motion for partial summary judgment that Husband had breached the Premarital Agreement’s joint bank account provision. Following a hearing, the trial court issued findings that the parties did not open the joint account until 2014, which Husband then funded with an initial deposit of $2,700 that he never replenished. Husband then closed the joint account in 2019. The trial court further determined that, during that period, Wife paid over $206,000 of ordinary living expenses, from Wife’s separate funds, that should have been payable under the Premarital Agreement from a joint account funded by Husband. The trial court ordered Husband to pay this amount to Wife as part of its Decree.

Altogether from the various obligations of the Premarital Agreement, the trial court ordered Husband to pay to Wife $498,997, plus $1,183 for tax refunds, and an attorney fee contribution to Wife of $10,000. After that was ordered, Husband tendered three checks in those respective amounts, through counsel, after which Wife filed three Releases of Judgement. Each Release identified one of the three payment obligations and recited it to be “paid and satisfied.”

However, weeks later, Wife sought to have the three Releases set aside on the basis that Husband failed to pay interest on the judgments. Husband countered that each release clearly recited that each judgement was “paid and satisfied” and, thus, Wife was estopped from pursuing them further. The trial court denied Wife relief on the Releases, and instead ordered Wife to pay $2,610 of Husband’s attorney’s fees related to the Release litigation.

Wife appealed and Husband cross-appealed.

Neither party was satisfied with the trial court’s resolution of the joint account issue. Wife objected to the trial court’s conclusion that Husband’s obligation to establish and maintain the joint account began in 2014, when the parties opened the account, rather than back in 2000 when they married. The Court of Appeals concluded that asking it to determine who was at blame for why the joint account was not established prior to 2014 was an invitation to reweigh the evidence and witness credibility, which it declined to do.

On cross-appeal, Husband argued that the trial court misconstrued the meaning of “ordinary living expenses.” The trial court determined that, since the term was undefined in the Premarital Agreement and ambiguous, it accepted parol evidence to determine its meaning, and, further, the trial court’s resulting construction of the term was not erroneous.

As to the Releases, Wife advanced an argument, rejected by the Court of Appeals, that Husband’s underlying judgments were distinct from accrued interest on those judgments and, thus, the Releases should not apply to accrued interest. “[Wife’s] claim for post-judgment interest was not a claim that arose separate from the trial court’s initial judgment; it was part of the very judgment that [Wife] released.”

Finally, Wife appealed the attorney fee award of $2,610 related to the fees Husband incurred in responding to Wife’s motions to set aside the Releases. The Premarital Agreement included a term that generally precluded Husband from receiving an attorney fee award from Wife. But the Court of Appeals interpreted that provision as applying only to attorney’s fees that would be incurred as part of the divorce and property division, not Wife’s post-decree efforts to set aside Releases of Judgment.

The trial court’s order was affirmed.

Judge Robb wrote separately to dissent on the attorney fee award issue. While she agreed with the majority that the Premarital Agreement’s attorney fee waiver did not apply to these circumstances, she did not believe the fee award was warranted on its merits. She concluded that Wife’s effort to set aside the Releases was not meritless, and that Husband was in a position of significantly superior financial circumstances. She would have reversed the attorney fee award against Wife.

Kakollu v. Vadlamudi (July 26, 2021) (Legal Custody / Business Valuation Case)

HELD: The trial court did not err when it ordered that Mother have sole legal custody of Child, even though the parties agreed to joint legal custody, and the custody evaluation expert recommended joint legal custody.

HELD: The trial court did not abuse its discretion in valuing Husband’s business, or in its characterization of a preliminary advance of attorneys’ fees from Husband to Wife.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife married in 2010, had Child together, and then, in 2018, Wife filed her petition for dissolution of marriage. The parties entered into a preliminary agreement that provided for joint legal custody, with primary physical custody to Wife subject to Husband’s parenting time. The agreed entry also provided for Husband to advance $50,000 for Wife’s attorneys’ fees and litigation expenses, the precise characterization of which would be deferred for future determination.

In a separate proceeding, Wife sought and secured an order of protection against Husband.

Following a final hearing, the trial court noted that the parties agreed to joint legal custody, and that their evaluator, Dr. Michael Jenuwine, recommended joint legal custody; however, the trial court awarded sole legal custody to Wife. The trial court made its order based, in part, upon findings that the parties could not communicate and cooperate effectively, and that there was “an established pattern of domestic violence.”

The trial court also determined that the $50,000 transferred from Husband to Wife for preliminary attorneys’ fees would not be counted as an advance to Wife of her share of the marital estate.

Finally, after hearing from Husband’s valuation expert that Husband’s dental business was worth $1,560,000, and from Wife’s valuation expert that the business was worth $2,712,000, the trial court essentially adopted the value conclusion of Wife’s expert.

Husband appealed.

On the issue of legal custody, the Court of Appeals noted the great discretion afforded to a trial court in making custody determinations. The Court noted that the trial court’s order had “carefully and thoroughly analyzed the evidence relevant to [the statutory custody determination factors] and found that joint legal custody was not in Child’s best interests.” The Court viewed Husband’s appeal as an invitation to reweigh the custody evidence, which it declined to do.

On Husband’s preliminary payment of $50,000 towards Wife’s attorneys’ fees, the Court of Appeals noted that the preliminary agreement stated that characterization of the payment would be deferred to final hearing whether any of the $50,0000 should be “deemed an advance of [Wife’s] property settlement . . . spousal maintenance, or some combination thereof.” The Court of Appeals concluded the trial court’s decision not to count this as an advance upon Wife’s property settlement was no erroneous, including because Husband did not present any evidence that the source of the payment was marital assets.

Finally, the Court of Appeals rejected Husband’s appeal as to the trial court’s valuation of his business, primarily because the trial court’s determination of value was within the range of valuations presented by expert testimony.

The trial court’s order was affirmed.

In Re: The Paternity of BH; Kelsey Morrison v. Aaron Harmon (July 20, 2021) (Paternity Case)

HELD: In a paternity case, the trial court did not abuse its discretion when it determined that Indiana was a more convenient forum than Michigan, and awarded the parties joint legal custody of Child.

FACTS AND PROCEDURAL HISTORY:

Mother became pregnant shortly after the parties met in the Virgin Islands. Father, who worked for FEMA, made his residence in Indiana, where Mother moved to live with him. Child was born in November 2018, after which a paternity affidavit was executed by Father. The parties continued living and working in Indiana, while raising infant Child together.

In late 2019, Mother and Child began spending more time with Mother’s family in Michigan, eventually moving there permanently in January 2020. Father was involved in an accident that resulted in a death, and he was charged with murder in February 2020. The conditions of Father’s pre-trial release did not permit him to leave Indiana.

In the spring of 2020, Father filed, in Indiana, a petition to establish paternity, custody, and support. Shortly thereafter, Mother filed similar proceedings in Michigan.

After a hearing, the Indiana trial court determined that Indiana was the proper forum for the case. While the matter was pending, Mother took Child to Indiana one weekend per month for Father to have parenting time.

When Father’s petition as heard, both counsel stipulated that joint legal custody had been agreed upon, and at no time did Mother request sole legal custody. In terms of parenting time, Father requested more than one weekend per month: Father offered to meet Mother in Indiana, halfway between their homes, for exchanges two weekends per month. Mother was agreeable with two weekends per month, but proposed that one of them occur by Father travelling to Michigan and exercising his time there.

The trial court issued its order, providing for joint legal custody and a parenting time consistent with Father’s proposal. Mother appealed.

On the issue of forum, the Court of Appeals reviewed Indiana’s codification of the UCCJA, which lists relevant factors for the determination of forum. In light of the totality of the circumstances, especially including that Child had lived most of his life in Indiana, not Michigan, the trial court’s determination that Indiana was the more appropriate forum was not an abuse of discretion.

The Court of Appeals quickly dispensed with Mother’s argument that the award of joint legal custody was erroneous, since Mother had stipulated to it at trial and had never requested sole legal custody.

On the issue of parenting time, the Court of Appeals noted the highly discretionary nature of parenting time orders in “distance as a factor” cases. Including because of the limitations on Father not to leave the state of Indiana, the trial court’s order that Father’s two weekends per month could both be exercised in Indiana was not an abuse of discretion.

The trial court’s order was affirmed.

Judge Tavitas wrote separately to concur. But she pointed out that the Indiana trial court neglected to follow the provisions of the UCCJA about communicating on the forum issue with its corresponding court in Michigan. However, because neither party objected, the argument was waived.

Romero v. McVey (April 8, 2021)

HELD: Trial court erred when it denied grandparents request for visitation rights, apparently based upon an optimism that such visitation could be arranged informally and without a court order.

FACTS AND PROCEDURAL HISTORY:

Child was born to parents who had complicated legal and substance abuse problems, and Child was immediately placed in the care of Child’s maternal aunt (“Aunt”). Aunt began the process of initiating an adoption of Child.

A week after Child’s birth, DCS initiated a CHINS matter, citing Mother’s substance abuse. Mother was out of the picture thereafter, and Father was incarcerated.

Father’s mother and stepfather (“Grandparents”) filed a petition for grandparent visitation. While Grandparents were seeing Child regularly based upon an informal understanding they had with Aunt, Grandparents expressed concerned the opportunities to see Child might stop after the Aunt’s adoption of Child was finalized.

At a hearing of the matter, Aunt testified that she was supportive of Child’s relationship with Grandparents, and that she wished for it to continue. However, the trial court denied the petition for grandparent visitation, writing, in part, that “[n]o evidence has been presented suggesting that [Aunt] will restrict appropriate conduct with [Child’s] relatives post adoption.” Grandparents appealed.

The Court of Appeals noted the deference afforded to trial courts hearing family law matters. The Court noted that the Grandparents met the statutory criteria for seeking a grandparent visitation order and, importantly, that such an order must be established prior to an adoption for a grandparent to have guaranteed contact with the child post-adoption.

Evaluating the circumstances, the Court of Appeals concluded it was in Child’s best interests to have a grandparent visitation order, and that the trial court’s denial of same was clearly erroneous.

The denial of the Grandparents’ visitation petition was reversed and remanded for further proceedings to fashion a specific grandparent visitation order.

Faulk v. Bissell (March 29, 2021)

HELD: Trial court in divorce proceedings erred when its Decree ordered Child’s last name changed from “Faulk,” which was Father’s last name, to “Bissell-Faulk,” a hyphenated combination of the parents’ last names; however, the legal error was that the trial court lacked the statutory authority to order any change of Child’s name.

HELD: Trial court erred in its child support calculation when it declined to impute income to Mother due to her ability to live rent-free with her parents.

FACTS AND PROCEDURAL HISTORY:

Mother and Father married in 2017, at which time Mother changed her last name from Bissell to Father’s last name, Faulk. Mother became pregnant but filed a petition for dissolution of marriage prior to giving birth to Child. When Mother gave birth to Child, she signed a birth certificate that listed Child’s name as J.L. Bissell, rather than C.J. Faulk, as the parties had agreed previously.

At the final hearing of the divorce, Father asked that Child’s last name be changed to Faulk, whereas Mother requested that it either be left Bissell, or changed to Bissell-Faulk. The trial court ordered Child’s name changed to Bissell-Faulk. Also, in its child support calculation, the trial court declined to impute income to Mother based upon her living rent-free with her parents, instead basing Mother’s income for support purposes solely on her earned income as a school teacher.

Father appealed.

The Court of Appeals concluded that the trial court had no statutory authority to change Child’s name. The only marriage dissolution statute that authorizes a name change is that of a wife’s name being restored to her maiden name. The Court noted that there is an Indiana statute that permits parents or guardians to change the name of a child, but none of that statute’s provisions or requirements had been followed in this case. Therefore, the trial court’s name change was reversed.

On the issue of Mother’s income imputation, evidence was presented that Mother lives rent-free with her parents. Mother estimated that an apartment would cost her about $1,000 per month. Noting the Indiana Supreme Court’s 1999 Glass v. Oeder case, which affirmed an imputation to a father for his rent-free residence, the Court of Appeals reversed the trial court’s child support calculation, remanding the issue for inclusion of the value of Mother’s living arrangements to be included in Mother’s income for the child support calculation.

Two other appellate issues raised by Father were rejected by the Court. The trial court’s Decree included an annual child support true-up to address Father’s potential for irregular income as set forth in the Guidelines. The Court of Appeals affirmed the true-up provision.

Second, the trial court’s Decree awarded Mother primary physical custody, subject to Father’s IPTG parenting time. However, as to the “opportunity for additional parenting time,” the Decree added some terms and conditions regarding notice and logistical considerations that do not appear in the IPTG. The Court of Appeals did not consider these additional terms to be an abuse of discretion.

The Court ordered the provision of the Decree that changed Child’s name reversed and remanded with instructions to vacate the name change order.

Judge Riley dissented on the name change issue. She believed that the name change was presented to the trial court as part of the miscellaneous incidents of resolving the dissolution of the marriage, and Mother did not object to proceeding in that manner. Judge Riley would have then applied a “best interests of the child” standard to a prospective name change, under which she expressed concerns that a hyphenated name would leave child with a different last name than either of her parents, or any of Child’s siblings. She concluded the trial court had authority to change Child’s name under the circumstances of the case, but that changing it to a hyphenated name was an abuse of discretion.

In re: the Paternity of B.R.H. (March 26, 2021) (Relocation Case)

HELD: Trial court’s order denying Mother’s request to relocate with Child to New Mexico was affirmed. While Mother’s proposed relocation was made in good faith, the relocation was not in Child’s best interests.

FACTS AND PROCEDURAL HISTORY:

Mother and Father had a relationship in 2015 that resulted in the birth of Child in 2016. Father filed a petition to establish paternity that resulted in an agreed entry that did so, as well as provided for the parties to share joint legal custody of Child, with Mother’s primary physical custody subject to Father’s IPTG parenting time.

In 2018, Mother filed a petition to relocate to Texas with Child. In support, Mother asserted that she was offered employment there with a hospital as a registered dietician, and that the Texas job was her only offer of employment after a job search. Father responded with a petition to modify custody to him.

Following a hearing in 2018, the trial court granted Mother’s petition to relocate and denied Father’s petition to modify custody. However, Mother’s job opportunity in Texas did fell through, and she did not move.

Mother subsequently met and married a man living in Clovis, New Mexico, and she filed a petition to relocate there. That petition and Father’s response to it were heard by the trial court over several days. While the trial court concluded that Mother’s desire to relocate was in good faith (to be with her husband), it was not in Child’s best interests to be relocated from Dubois County to New Mexico. Mother’s petition to relocate with Child was denied. Mother appealed.

The Court of Appeals noted the deference that is afforded trial courts, particularly in family law matters. Reviewing the record, the Court concluded that the evidence supported the trial court’s findings that, while Mother’s proposed relocation was made in good faith, it was not in Child’s best interests to do so, particularly due to the impact a move of that great distance would have on Child’s relationship with Father, as well as all of the bonded relationships Child had established in Indiana.

The trial court’s order denying Mother’s proposed relocation was affirmed.