Family Law Case Updates
Stafford v. Stafford (April 21, 2025) (Parenting Time Restriction / Deviation from Guidelines)
HELD: The Indiana Court of Appeals reversed the trial court’s parenting time order, finding that the elimination of Father’s overnight parenting time constituted a significant restriction that required specific statutory findings of endangerment or impairment, which the trial court failed to make.
FACTS AND PROCEDURAL HISTORY:
Father and Mother married in 2011 and had three children together. In January 2023, Mother filed a petition for dissolution. The trial court’s February 2023 provisional order awarded Mother primary physical custody and granted Father parenting time consistent with the Indiana Parenting Time Guidelines, including overnights, and established joint legal custody.
In August 2023, Mother filed an emergency petition seeking to suspend Father’s overnight parenting time, alleging that the children exhibited behavioral changes after overnight visits. She based her request on a recommendation from a GAL. In December 2023, the trial court ordered Father to undergo a mental health evaluation and complete parenting classes, but denied Mother’s request to suspend overnights at that time.
A final hearing was held in March 2024. In May 2024, the trial court issued its final decree awarding Mother sole legal and primary physical custody. Father’s parenting time would be the Indiana Parenting Time Guidelines—but eliminating all overnights. The trial court justified its decision to eliminate Father’s overnights by citing concerns from the GAL’s report: the children’s fear of Father, their anxiety related to his behavior, Father’s agitation and emotional dysregulation during testimony, his combative demeanor, and his partial noncompliance with court-ordered programs. Although Father had completed a psychological evaluation that found no significant mental health issues, the GAL still recommended against overnight parenting time due to his behavior and lack of cooperation.
Father appealed, arguing that the elimination of all overnights constituted an improper restriction on his parenting time without the statutorily required finding that his parenting would endanger the children’s physical health or significantly impair their emotional development. The Court of Appeals agreed, holding that removing all overnight parenting time significantly deviated from the Parenting Time Guidelines and amounted to an unreasonable restriction. While the trial court cited concerns about the children’s fear and Father’s demeanor, it did not explicitly find that Father’s parenting endangered the children’s health or significantly impaired their emotional development, as required by Indiana Code § 31-17-4-1.
The Court of Appeals emphasized that while trial courts have discretion in crafting parenting time orders, restrictions below the minimum Parenting Time Guidelines must be supported by specific findings of endangerment or impairment. Here, those findings were absent. The appellate court further noted that frustration with a parent’s behavior in litigation cannot substitute for a proper best interests analysis focused on the children’s well-being.
Accordingly, the Court of Appeals reversed the trial court’s parenting time order and remanded for further proceedings consistent with statutory requirements.
In re: Adoption of M.D. (April 17, 2025) (Adoption)
HELD: The Indiana Court of Appeals affirmed the trial court’s granting of adoption to Adoptive Parents, holding that the putative father’s consent was not required because paternity had not been legally established prior to the adoption petition and he had failed to timely register with the Indiana Putative Father Registry, resulting in irrevocably implied consent under Indiana law.
FACTS AND PROCEDURAL HISTORY:
Child was born to Mother in August 2017. In 2019, Mother filed a paternity action in Marion County, and Putative Father underwent DNA testing confirming he was the Child’s biological father. However, Putative Father took no further action to formally establish paternity, and during this time, he was incarcerated. Separately, Child was adjudicated a Child in Need of Services (CHINS) due to domestic violence concerns in Mother’s home, and was placed with Adoptive Parents in December 2019.
In March 2022, the Department of Child Services filed a petition to terminate Mother’s parental rights, and in July 2022, Adoptive Parents filed a petition to adopt the Child. By that time, Putative Father had neither established paternity nor registered with the Putative Father Registry. While Mother consented to the adoption, Putative Father remained incarcerated and inactive in both the paternity and CHINS proceedings. After Putative Father’s release in January 2023, he failed to appear at a subsequent paternity status hearing in October 2023. Meanwhile, Adoptive Parents moved for a determination that Putative Father’s consent was not required and was irrevocably implied due to his failure to register.
The Adoption Court granted Adoptive Parents’ motion in December 2023, finding that Putative Father’s consent was both unnecessary and irrevocably implied. In early 2024, Putative Father obtained a paternity order from the Paternity Court, but following motions by the Adoptive Parents, the paternity proceedings were stayed and transferred to the Adoption Court, which vacated the paternity order on the grounds that it had been entered in error after the adoption petition had already been filed. The Adoption Court ultimately granted the adoption in August 2024, confirming that Putative Father’s failure to register with the Registry waived his rights.
On appeal, Putative Father argued that his participation in DNA testing should be deemed sufficient to establish paternity, and that he should not be penalized for delays in the paternity proceedings. The Court of Appeals rejected these arguments, explaining that under Indiana law, paternity must be formally established either by court order or paternity affidavit—not merely by genetic testing. Moreover, the Court of Appeals held that Putative Father was statutorily required to register with the Putative Father Registry and failed to do so within the necessary timeframe, despite clear obligations outlined in Indiana Code § 31-14-20-1 and § 31-19-5-12. As a result, his consent to the adoption was not required and was irrevocably implied under Indiana Code § 31-19-5-18.
The Court of Appeals also rejected Putative Father’s belated claim that the attorney arranging the adoption should have known his identity and location, finding no evidence to support that argument. Thus, the Court of Appeals affirmed the adoption decree in favor of Adoptive Parents.
Gard-Holm v. Holm (April 11, 2025) (UCCJA)
HELD: The Indiana Court of Appeals affirmed the trial court’s determination that Germany was Child’s home state under the Uniform Child Custody Jurisdiction Act (UCCJA), upheld the registration and enforcement of a German custody order granting temporary custody to Father, and found that Indiana lacked jurisdiction to make an initial custody determination.
FACTS AND PROCEDURAL HISTORY:
Mother, a U.S. citizen, and Father, a Danish citizen, married in Chicago in 2021. In 2023, while pregnant, Mother traveled to Germany to live with Father. Child was born there in July 2023. After a brief period of cohabitation, Mother and Father separated following allegations of domestic violence by Father, resulting in a German protective order limiting Father to supervised visitation. In November 2023, Mother met with a German attorney, filed for sole custody in a German court, and, shortly thereafter, left Germany with the Child for Indiana without Father’s knowledge.
In December 2023, Mother filed a petition for emergency custody in Indiana, asserting fears for her safety and claiming Father had initiated custody proceedings in Germany. In reality, Mother herself had commenced the German custody proceeding before leaving. In January 2024, the German court held a custody hearing (which Mother did not attend), resulting in a custody order granting temporary custody of the Child to Father. In April 2024, Father moved in Indiana to register and enforce the German custody order under the UCCJA and to return the Child to Germany.
At a hearing on jurisdiction, Mother contested Germany’s status as the Child’s home state, arguing Child had not resided in Germany for the six months required under the UCCJA. She also claimed her German attorney had filed the custody petition without her consent, and that she was unaware of the German court hearing. The Indiana trial court found Mother not credible, determined that Germany was the Child’s home state under Indiana Code § 31-21-2-8 (since the Child was less than six months old and had lived continuously in Germany since birth), and ruled that Indiana lacked jurisdiction under the UCCJA.
On Mother’s appeal, the Indiana Court of Appeals affirmed. The Court of Appeals explained that under the UCCJA, Germany was properly treated as a U.S. “state” for jurisdictional purposes and that Germany satisfied the “home state” definition. Because the German court exercised jurisdiction and issued a custody order under factual circumstances substantially conforming to UCCJA standards, Indiana was required to recognize and enforce the foreign custody order. The Court of Appeals also emphasized that the “significant connections” test only applies when no home state exists, which was not the case here.
Judge Tavitas concurred and wrote separately, noting that although Mother might have been eligible for temporary emergency jurisdiction under Indiana Code § 31-21-5-4 due to allegations of domestic violence, she failed to preserve that argument at the trial court level or on appeal. The concurring opinion also highlighted that the trial court had not fully complied with the statutory requirement to immediately communicate with the German court, although the failure did not alter the result in light of Mother’s waiver.
Tandy v. Smith (April 10, 2025) (Custody Modification)
HELD: The Indiana Court of Appeals affirmed the trial court’s order modifying custody in favor of Father, finding that substantial changes in relevant circumstances, including concerns about maternal family violence and Mother’s credibility, supported the conclusion that awarding custody to Father was in the children’s best interests.
FACTS AND PROCEDURAL HISTORY:
Mother and Father married in 2014 and had twin sons born in 2015. They separated in early 2017. Their marriage was dissolved in 2019, with custody awarded to Mother, and Father receiving parenting time per the Indiana Parenting Time Guidelines. After the dissolution, Father lived and worked in Alabama but regularly drove to Indiana every other weekend to exercise parenting time and attend the children’s school and extracurricular events.
Tensions between the families escalated after repeated incidents where the maternal grandparents stalked and physically confronted Father during parenting time. In August 2020, a fire was intentionally set at the paternal grandparents’ home in Alabama, where Father was staying. Subsequent evidence, including social media posts by Mother referencing fires, and later testimony from a family associate, implicated Mother’s uncle as the perpetrator. Mother’s uncle testified that maternal grandmother encouraged him to harm Father, though he claimed he intended only to scare him.
In May 2023, Father filed a petition to modify custody, citing these events and new concerns about the children’s safety. At the evidentiary hearing, Father presented substantial evidence of his consistent and meaningful involvement in the children’s lives, both in Indiana and Alabama, while Mother’s testimony about her awareness of the arson and her social media activity was found not credible. The trial court also noted the ongoing toxic influence of maternal grandparents, who continued to engage in intimidating behavior toward Father.
The trial court issued a detailed order finding that several statutory factors under Indiana Code § 31-17-2-8 had substantially changed, including the children’s age, the evolving bond with Father, and the serious concerns regarding the maternal family’s behavior. While the trial court did not find that Mother orchestrated the fire, it concluded she knew about it soon after the event and demonstrated troubling indifference toward the violence aimed at Father. The court specifically found Father to be a credible witness and Mother lacking in credibility, particularly regarding her attempts to minimize her disturbing social media posts.
On appeal, Mother challenged the modification order, arguing that no substantial change had occurred and that the trial court improperly weighed the evidence. The Court of Appeals rejected these arguments, emphasizing appellate deference to trial court’s credibility findings in custody matters. It affirmed the trial court’s findings that multiple substantial changes occurred and that modifying custody to Father was in the children’s best interests, particularly to protect their emotional growth and well-being from the negative influence of maternal relatives. The trial court’s modification order was affirmed.
Harrill v. Harrill (April 8, 2025) (Premarital Agreement)
HELD: The Indiana Court of Appeals affirmed the trial court’s finding that the parties’ premarital agreement was valid and enforceable and, further, that the premarital agreement failed to exclude certain assets from the marital estate because they were not listed on the parties’ financial disclosures that were attached to the premarital agreement.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 2003 after executing a premarital agreement intended to preserve Husband’s substantial premarital investments as his separate property. Wife, then thirty-five, had a minor child from a previous relationship, stable employment, and owned a home. Husband, from a wealthy family, had hired an attorney to draft the premarital agreement, presented it to Wife with the suggestion that she could seek her own counsel (which she declined), and agreed to Wife’s request to add a clause requiring Husband to pay for the education of her child and any children born during their marriage.
The premarital agreement declared that all property owned separately before marriage, and any property acquired thereafter by gift or inheritance, would remain that party’s respective separate property. Both parties signed the agreement, each affirming full financial disclosure through attached schedules of assets. However, Husband’s disclosure omitted two investment accounts (“the Energy accounts”) that were listed on his tax returns before marriage, and Wife’s 401(k) account was also omitted from Wife’s disclosure. The parties proceeded with the marriage and later had two children together.
During the marriage, Husband maintained control over a Fidelity investment account listed as Husband’s in the premarital agreement. He also took out a significant margin loan against that account, using the proceeds to pay for family-related expenses and personal expenditures. By the time of the dissolution proceedings in 2022, Husband’s Fidelity account was worth over $3 million, but with a margin loan of approximately $1.5 million. After Wife filed for dissolution, Husband transferred the Energy account funds (then valued over $1 million) into the Fidelity account to pay down the margin loan.
The trial court held evidentiary hearings in December 2023 and May 2024. It concluded that the premarital agreement was valid and enforceable, that the Energy accounts—because they had not been disclosed as Husband’s separate property—were marital property, and that the Fidelity account remained Husband’s separate property along with its margin loan debt. The trial court divided the marital estate equally and ordered Husband to pay Wife an equalization payment exceeding $1.15 million.
On appeal, Husband challenged the inclusion of the Energy accounts in the marital estate and the exclusion of the Fidelity margin debt. The Court of Appeals affirmed, finding that the premarital agreement’s language imposed a duty of full disclosure and that Husband failed to list the Energy accounts despite knowing of their existence. The Court of Appeals further held that the margin loan debt was Husband’s sole responsibility, as it was collateralized solely by his separate property Fidelity account, and Wife had no access or control over it.
Wife cross-appealed, arguing that the premarital agreement was unconscionable and executed involuntarily. The Court of Appeals rejected these arguments, citing Wife’s age, professional experience, financial independence, voluntary execution of the agreement after opportunity to consult counsel, and lack of coercion. The Court of Appeals further found no gross disparity in bargaining power and affirmed the trial court’s conclusion that the agreement was neither involuntary nor unconscionable under Indiana law. The trial court’s Decree was affirmed.
Williams v. Williams (March 31, 2025) (Child Support Calculation / Postnuptial Agreement Enforcement)
HELD: The Indiana Court of Appeals reversed the trial court’s child-support order for failure to credit Wife’s work-related childcare expenses, but affirmed the property division, holding that Wife failed to show error regarding the trial court’s refusal to enforce the parties’ postnuptial agreement.
FACTS AND PROCEDURAL HISTORY:
Wife and Husband married in 2016 and had two children. In 2019, they moved into a home purchased by Wife and her mother (“the Marital Home”), and the parties executed a postnuptial agreement in which Husband waived any claim to the Marital Home in the event of divorce. Wife filed for dissolution in October 2022. During the proceedings, Husband challenged the enforceability of the postnuptial agreement, claiming he signed it involuntarily and under duress.
At the final hearing in June 2024, Wife sought enforcement of the postnuptial agreement to exclude the Marital Home from the marital estate. Husband, meanwhile, requested a child-support order that excluded his overtime income, a parenting-time credit for anticipated overnight visits with the children, and opposed crediting Wife for childcare expenses. At the time, Husband was not exercising overnight parenting time, but the parties anticipated resuming overnights within four months. Wife, working about sixteen hours per week, was incurring $190 per month in preschool expenses for their youngest child.
Following submission of proposed orders, the trial court issued its dissolution decree. On child support, the trial court adopted Husband’s worksheet, excluding overtime income, granting Husband a parenting-time credit, and omitting any credit for Wife’s childcare costs, resulting in a $164 weekly obligation. Regarding the Marital Home, the trial court noted that Wife’s own proposed findings asked the court to conclude that Husband had NOT knowingly and voluntarily executed the postnuptial agreement. The trial court accepted this concession, included half the Marital Home’s equity in the marital estate, awarded the Marital Home to Wife, and ordered Wife to pay Husband an equalization payment of $68,211.
On appeal, Wife challenged both the child-support calculation and the court’s refusal to enforce the postnuptial agreement. The Court of Appeals found no error regarding Husband’s income calculation or his parenting-time credit, given the evidence that overtime was not guaranteed and the impending resumption of Husband’s overnight visits. However, the Court of Appeals held that the trial court erred by not awarding Wife any credit for work-related childcare expenses, noting that while her relatively low work hours could affect the amount of credit, it did not justify denying credit altogether. The Court of Appeals reversed the child-support order and remanded for recalculation including appropriate childcare expense credit.
As to the property division, the Court of Appeals found that Wife failed to meet her burden to show error. Wife did not address or dispute the trial court’s reliance on her proposed findings, which acknowledged that Husband had not knowingly and voluntarily signed the postnuptial agreement. Wife also failed to include her proposed order in the appellate record, precluding review. Consequently, the Court of Appeals affirmed the property division, while cautioning trial courts and litigants about ensuring that proposed orders are properly entered into the official record to facilitate appellate review.
Omije v. Whilby-Omije (March 21, 2025) (Post-Dissolution Contempt, Sale of Marital Property, and Valuation Dispute)
HELD: The Indiana Court of Appeals affirmed the trial court’s order finding Husband in contempt for failing to sell marital real estate as ordered in the dissolution decree, rejecting Husband’s claims for post-dissolution expenses related to the real estate, and finding no abuse of discretion in ordering the sale of the real estate based on its current value without retroactive adjustments.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 1999, separated in 2010, and finalized their dissolution in September 2015. The dissolution decree required that the parties’ jointly owned California home be sold, with the mortgage paid off and net proceeds equally divided. Husband, however, failed to sell the home, prompting Wife, acting pro se, to make repeated unsuccessful attempts to enforce the decree through the filing of multiple contempt petitions over several years.
After dismissals for procedural defects, Wife eventually filed a proper verified petition for contempt in February 2024. At the April 2024 hearing, Husband admitted he had not sold the property but argued that selling in 2015 would have resulted in a loss. The trial court rejected this defense, found Husband in contempt, and ordered him to sell the California property within 180 days, based on a current market analysis, and to split the net proceeds equally with Wife. The trial court emphasized that the original decree did not condition the obligation to sell on market conditions or profitability.
Following the contempt finding, Husband filed a Motion to Amend and/or Clarify, arguing he was entitled to credit for post-dissolution expenses incurred maintaining the California property and that valuation should be based on the property’s value at the time of the 2015 decree. After a hearing, the trial court denied Husband’s motion, reaffirming that Husband’s longstanding disobedience precluded him from claiming post-dissolution expenses or retroactive valuations. The trial court distinguished between initial property division and enforcement of existing orders, finding that equitable relief was not warranted in contempt proceedings based on Husband’s delay.
On appeal, Husband argued the trial court abused its discretion by failing to credit his post-decree expenses related to the California residence and by effectively valuing the property as of 2024 rather than at the time of the decree. The Court of Appeals rejected these arguments, noting that Husband had presented no evidence of specific expenses incurred and that the trial court had not assigned a particular value to the property but merely ordered its sale, consistent with the original decree. The Court of Appeals noted that any increase in the home’s value was a direct result of Husband’s refusal to comply with the dissolution order, and thus Husband could not now seek to benefit from his own contempt.
Accordingly, the Court affirmed the trial court’s findings and enforcement orders.
Dickerson v. Toney (March 3, 2025) (Child Support Enforcement)
HELD:The Indiana Court of Appeals affirmed the trial court’s grant of the State’s motion to correct error and denial of Father’s Trial Rule 60(B) motion, holding that the 2014 Indiana child support order remained enforceable despite informal private arrangements between the parents, and that no extraordinary circumstances justified equitable relief from judgment.
FACTS AND PROCEDURAL HISTORY:
Father and Mother are the parents of Child, born in 2004. In 2014, after Mother sought support through Pennsylvania’s Title IV-D office, Indiana’s Marion Circuit Court entered an order establishing Father’s paternity and setting child support at $139 per week under the Uniform Interstate Family Support Act (UIFSA). Shortly after the support order, the Philadelphia IV-D office sent communications to Indiana’s Title IV-D agency requesting case closure following Mother’s withdrawal from support services. Father continued paying child support directly to Mother and believed the Indiana support order had been terminated based on these communications and the return of his payments by Pennsylvania authorities.
For several years, Father made irregular private support payments to Mother without formal modification of the Indiana order. In 2021, Mother initiated a new support enforcement action in Pennsylvania, leading Indiana’s Title IV-D office to resume enforcement of the original support order. Father, believing the obligation had long since ended, faced enforcement measures including wage garnishment and federal tax refund interception. In response, Father petitioned to modify support and sought recalculation of arrearages, arguing the Indiana order was no longer valid.
Initially, the trial court agreed with Father, finding that the support obligation had been terminated in 2014 based on the parties’ informal agreement and the communications from Pennsylvania. However, the State of Indiana moved to correct error, contending that only a court—not a support enforcement agency—could terminate a child support order, and that no judicial action had ever modified or ended the Indiana support order.
On review, the trial court granted the State’s motion to correct error, finding that under UIFSA, only a tribunal—not agency communications—could modify or terminate a support order. The trial court emphasized that neither party had sought judicial modification, and informal agreements could not retroactively eliminate child support obligations. Although Father had made private payments, the original 2014 Indiana order remained the controlling obligation through the child’s nineteenth birthday under Indiana law. Father was awarded credit for direct payments he made, but remained responsible for substantial arrearages.
Father also filed a Trial Rule 60(B) motion seeking equitable relief, arguing that extraordinary circumstances justified setting aside the child support order. The trial court denied the motion, finding that Father failed to demonstrate circumstances beyond his control that would justify relief. Father’s misunderstanding of the legal effect of Pennsylvania’s administrative communications did not excuse his failure to seek judicial modification of the Indiana support order, and equitable doctrines such as laches did not apply in child support proceedings. Thus, the trial court properly enforced the Indiana order and refused to set aside the resulting arrearages.
Wilkerson v. Egan (February 27, 2025) (Retirement Division / QDRO)
HELD:The Indiana Court of Appeals affirmed the trial court’s denial of Wife’s motion to correct error, holding that there was no abuse of discretion in refusing to modify the original dissolution decree regarding the timing of retirement plan distribution, as no extraordinary circumstances justified relief under Trial Rule 60(B)(8).
FACTS AND PROCEDURAL HISTORY:
Wife and Husband divorced in May 2023. Under the dissolution decree, Wife was awarded $95,122.26 from Husband’s National Electrical Annuity Plan (NEAP) to be transferred via QDRO. After the QDRO was processed, Wife was informed that NEAP rules prohibited her from receiving the funds until Husband reached age 55; he was 41 at the time of dissolution. Wife thereafter filed a motion for relief from judgment, seeking modification of the decree to require Husband to pay her an immediate lump sum equivalent to her awarded share, arguing that the trial court’s intent had been immediate distribution.
The trial court denied Wife’s motion for relief from judgment. Wife then filed a motion to correct error, again asserting that the decree should be amended to provide Wife immediate access to her share of the funds. The trial court rejected this motion as well, clarifying that its original dissolution decree merely awarded Wife a specific sum from the NEAP account without specifying a timeline for distribution. The trial court further explained that the language Wife relied upon—asserting immediate payment—came not from the decree itself, but from the language of the QDRO drafted by her attorney, which did not alter the decree’s terms.
On appeal, Wife argued that she was entitled to relief under Indiana Trial Rule 60(B)(8), which allows relief from judgment for any reason justifying equitable intervention. The Court of Appeals affirmed the trial court, holding that Wife failed to demonstrate the “extraordinary circumstances” necessary for relief. The Court of Appeals noted that the inability to receive immediate distribution was neither caused by the trial court’s error nor by circumstances outside Wife’s control. Wife had access to information regarding the NEAP plan’s distribution limitations prior to final hearing but did not act to modify or protect her interest at that time.
The Court distinguished this case from prior decisions granting T.R. 60(B) relief where the original decree was legally impossible to perform. Here, Wife’s award remained legally enforceable—she would simply need to wait until the plan’s maturity date. Thus, although the situation was less than ideal for Wife, it did not rise to the level of inequity required to set aside or modify a final judgment under Rule 60(B)(8).
In re: Adoption of G.S. (February 26, 2025) (Stepparent Adoption, Parental Consent)
HELD:The Indiana Court of Appeals affirmed the trial court’s reinstatement of the adoption petition and its conclusion that the biological Father’s consent was required for the adoption, finding no error in the trial court’s determination that Father did not unjustifiably fail to communicate with or support the child.
FACTS AND PROCEDURAL HISTORY:
Father and Mother were romantically involved beginning in 2014 and purchased a home together in 2021, shortly before the birth of Child. After the parties separated in spring 2022, Father briefly moved to North Carolina but maintained daily communication with Child via phone and video. Upon returning to Indiana, Father sought to remain involved but faced substantial barriers from Mother, including her refusal to disclose her new addresses and persistent denial of his repeated requests to spend time with Child. Despite his efforts, Father last saw Child in April 2022.
In May 2022, Mother initiated partition proceedings regarding the shared residence, which concluded in March 2023 with both parties receiving equal proceeds. Father struggled financially in 2022, earning approximately $13,000, before stabilizing his income in 2023. Meanwhile, in July 2023, Father filed a paternity action in Hendricks County to formalize his parental rights. Shortly thereafter, Mother married Stepfather, who filed a petition to adopt Child without Father’s consent in Fulton County. The trial court consolidated the adoption and paternity proceedings.
One day before the scheduled adoption hearing, Stepfather moved to dismiss the adoption petition without prejudice, intending to refile it in Hamilton County where his new counsel was located. The trial court initially granted the dismissal but, upon Father’s motion to correct error, reversed itself, reinstated the case in Fulton County, and denied Stepfather’s attempt to transfer venue. The court reasoned that significant litigation efforts had already occurred, and that allowing dismissal would impose duplicative burdens and legal prejudice on Father, citing Indiana Trial Rule 41(A)(2) and related precedent.
After an evidentiary hearing, the trial court denied Stepfather’s adoption petition. The trial court found that Father had made persistent efforts to communicate with and maintain a relationship with the Child, but Mother had obstructed these efforts. Father had consistently sent messages, purchased necessary items like a car seat, and traveled to see the Child, though his offers were rejected or ignored. The court held that Father’s communication efforts were thwarted and justified his lack of physical contact with the Child.
Regarding financial support, the trial court found that while Father had a duty to support the Child even absent a formal court order, his financial situation between mid-2022 and mid-2023—characterized by unemployment, significant debt from litigation expenses, and efforts to establish paternity to obtain a formal support order—mitigated any failure to pay support. Once Father’s financial circumstances improved, Father promptly took steps to formalize child support obligations through the paternity case, which remained delayed largely due to Stepfather’s adoption litigation strategy.
The Court of Appeals affirmed the trial court’s reinstatement of jurisdiction over the adoption petition and its finding that Father’s consent was necessary, resulting in the denial of Stepfather’s adoption petition.
A concurring opinion by Judge Tavitas further emphasized procedural irregularities in consolidating the paternity and adoption cases, warning trial courts to adhere to statutory mandates requiring expedited handling of paternity actions when adoptions are pending.
Fitzgerald v. O’Brien (February 13, 2025) (Property Division)
HELD:The Indiana Court of Appeals held that the trial court abused its discretion by awarding the Wife more than the net value of the marital estate, in violation of established precedent.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife began dating in 2016, and Husband purchased a home prior to marriage with a substantial down payment. Wife later moved into the home, contributing monthly rent and minor sums toward home improvements. The parties married in March 2022 but separated after only eight months, with Wife filing for dissolution in January 2023. At the time of separation, the marital estate included various individual assets and debts, notably Husband’s significant student loan debt of approximately $250,000.
At the dissolution hearing, the parties stipulated to asset and debt values: $387,946 in gross assets, $354,088 in debts, and a resulting net marital estate of $33,858. Neither party alleged asset dissipation. Husband requested that each party retain his or her own assets and liabilities without an equalization payment, even acknowledging that under his proposed division, Wife would receive more than 100% of the net estate. Wife, by contrast, requested an equalization payment of $51,337 to represent half the equity in the marital residence, less Husband’s premarital down payment.
The trial court ultimately assigned each party their respective assets and debts but ordered Husband to pay Wife a $42,234 equalization payment, representing 40% of the home’s equity after deducting Husband’s down payment. As a result, Wife’s net award exceeded the total value of the marital estate, while Husband’s net share became negative. Husband appealed, arguing that the trial court’s award violated the established rule that property divisions cannot exceed the net value of the marital estate absent findings of asset dissipation.
The Court of Appeals agreed. It emphasized that under related precedent, a property division awarding a party more than the entire net estate constitutes an improper form of maintenance and is an abuse of discretion unless justified by dissipation findings, which were not present here. Although the trial court expressed equitable concerns about Husband’s student loan burden and the brevity of the marriage, those considerations could not override the statutory and case law limits on the total value awarded.
Accordingly, the Court of Appeals reversed the trial court’s order and remanded for a new division of the marital estate that does not exceed the $33,858 net value of the marital estate.
Norris v. Norris (February 10, 2025) (Post-Dissolution Contempt, Contempt Damages)
HELD: In a 2-1 opinion, Indiana Court of Appeals affirmed in part, reversed in part, and remanded the trial court’s rulings on cross-petitions for contempt following the parties’ divorce. The Court ordered Wife to pay Husband damages for harming his credit for failing to pay a debt that was assigned to Wife in the Decree, reversed certain contempt findings against Steven, and directed a recalculation of the parties’ financial obligations.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife divorced in 2014. Their dissolution decree required Wife to assume and timely pay a loan owed to Wells Fargo and to indemnify Husband. It also ordered each party to pay a share of children’s school expenses, extracurricular activities (only if mutually agreed upon), and uninsured medical costs.
In 2017, Wife stopped paying the Wells Fargo debt and later filed for Chapter 13 bankruptcy, listing the debt but initially failing to properly notify Husband. Wife’s bankruptcy plan discharged her personal obligation, but Husband remained liable for the debt as a co-debtor.
Subsequently, both parties filed multiple petitions for rule to show cause related to unpaid obligations. At a November 2023 hearing, the trial court found Jennifer in contempt for failing to pay the Wells Fargo debt but declined to impose a remedy. Husband had testified that Wife’s default severely damaged his credit, forcing him to finance a truck purchase with a subprime loan, leading to $9,720 in extra interest costs. Husband introduced uncontested evidence, including credit score documentation and financial records, to support his claim. The trial court found insufficient evidence to award Husband damages for his impaired credit, citing a lack of direct proof connecting Wife’s actions to his financial harm. The court also found Husband in contempt for failing to pay his share of children’s uninsured medical expenses, school supplies, and extracurricular activities, and calculated his total arrearages, though with several mathematical errors regarding the extracurricular costs.
On appeal, the Court of Appeals affirmed the contempt finding against Wife but held that the trial court erred by failing to order a means for her to purge the contempt. It directed the trial court to order Wife to pay Husband $4,340.86, the amount of the Wells Fargo debt remaining. The appellate court also reversed the denial of damages for Husband’s truck loan, finding his uncontroverted evidence established a link between Wife’s breach and the harm to his credit, warranting $9,720 in damages.
The Court further reversed the contempt finding against Husband regarding extracurricular activities, noting that under the divorce decree, a parent was not responsible for extracurricular costs unless both parents agreed in writing, which Wife failed to establish. It affirmed Husband’s contempt finding for failure to pay uninsured medical and school expenses but ordered a corrected calculation of his arrearage to $1,770.01 after crediting partial payments.
Ultimately, the Court of Appeals remanded with instructions for the trial court to offset the parties’ obligations. Wife owed Husband approximately $14,810.85, accounting for damages, debt payment, and child support arrearages, minus Husband’s owed amounts.
Judge Tavitas dissented, arguing that the majority improperly raised and decided issues sua sponte that were not properly briefed or preserved for appeal, including the recalculation of Husband’s contempt obligations and the enforcement of the Wells Fargo debt. The dissent emphasized that Husband failed to provide cogent legal arguments or cite relevant authority to support his claims for credit damages and indemnification, and thus, the trial court’s judgment should have been affirmed. Judge Tavitas also warned that the majority improperly reweighed evidence by crediting Husband’s testimony and exhibits over the trial court’s finding that his damages were speculative.
In Re: Adoption of P.J.W. (January 9, 2025) (Grandparent Adoption Case)
HELD: The Indiana Supreme Court reversed the trial court’s denial of Grandparents’ adoption petition, holding that advanced age should be evaluated specifically under the Grandparents’ ability to rear and support the child, not generalized best-interest concerns, and that it was legal error to presume it is “inherently” in a child’s best interest to be raised by a biological parent.
FACTS AND PROCEDURAL HISTORY:
Child was born in 2016 and, beginning in 2019, lived full-time with his maternal great-grandparents (“Grandparents”), after both of his biological parents faced incarceration, substance abuse issues, and violence. Grandparents obtained permanent guardianship over Child without objection from the parents. In 2022, Grandparents petitioned for adoption. Child’s biological Father, contested the adoption.
The trial court found that Father’s consent was not required, as he had failed to provide financial support despite being able to do so. However, after a contested hearing in April 2023, the trial court denied the adoption, emphasizing Grandparents’ advanced ages (then 71 and 74) and Father’s recent progress in sobriety, employment, and rehabilitation efforts. The trial court also concluded it was “inherently” in a child’s best interest to be raised by a biological parent.
Grandparents appealed, and the Court of Appeals affirmed 2–1, with a strong dissent criticizing the trial court’s legal conclusions. Grandparents then petitioned for transfer, which the Indiana Supreme Court granted.
On review, the Indiana Supreme Court first clarified that a petitioners’ advanced age is relevant to whether they are of “sufficient ability” to rear and support the child under Indiana Code § 31-19-11-1(a)(2), not a general best-interest factor. While age can impact ability through factors like health, longevity, and capacity to provide care, the trial court erred by treating age itself as a stand-alone negative in the best-interest analysis without linking it to ability. The record showed Grandparents were in good health, financially stable, deeply bonded with Child, and actively engaged in his education, healthcare, and extracurricular activities.
The Indiana Supreme Court also held the trial court committed reversible legal error by concluding that it is inherently in a child’s best interest to be raised by a biological parent. Indiana adoption law does prioritize biological parental rights through the consent framework, but once consent is dispensed with—as it was here—the best-interest standard is independent and child-centered. Courts must focus on the child’s actual circumstances, including emotional bonds, stability, continuity, and community ties, rather than default assumptions about biology.
The Indiana Supreme Court emphasized that while Father had made meaningful strides toward rehabilitation, his limited relationship with the Child, long absence, and the deep bond the Child shared with Grandparents could not be ignored. A child’s best interest demands consideration of stability and emotional security, and the mere existence of biological ties cannot outweigh these factors.
Accordingly, the Indiana Supreme Court reversed the trial court’s denial of adoption and remanded with instructions to reconsider the Grandparents’ ability in light of their actual capabilities, not merely their chronological ages, and to conduct a new best-interest analysis using the correct legal standard.
Campbell v. Campbell (December 30, 2024) (Custody, Property Division, and Non-Disparagement Clause in Decree)
HELD: The Indiana Court of Appeals affirmed the trial court’s award of joint physical custody of the parties’ children, but reversed and remanded regarding the division of marital property, the handling of deferred financial issues, and a non-disparagement clause that violated the First Amendment.
FACTS AND PROCEDURAL HISTORY:
Mother and Father married in 2010 and had two children. Mother filed for dissolution in 2021. A provisional order in 2022 granted temporary physical custody to Mother, assigned temporary possession of vehicles, and deferred rulings on responsibility for car payments and child support arrearages until final hearing. At the final hearing in February 2024, both parties sought custody and division of significant marital assets, including retirement accounts, a marital residence, vehicles, a horse trailer, and a Bobcat skidder.
Mother sought sole physical custody, citing her close bond with the children, but the GAL testified that the children loved both parents equally, leaned on Father for homework help, and wanted a more stable schedule involving alternating weeks with each parent. Father presented evidence of his involvement in the children’s academics, extracurricular activities, and daily care. Both parents submitted competing property division proposals and testified about the origins of their retirement accounts and debts.
The trial court awarded joint physical custody, divided the marital estate, declined to specifically rule on the deferred car payment and child support issues, and inserted a non-disparagement clause prohibiting each parent from criticizing the other to third parties such as teachers and doctors.
Mother appealed, challenging the custody award, the property division, the unresolved deferred financial issues, and the constitutionality of the non-disparagement clause.
The Court of Appeals affirmed the award of joint physical custody, finding it supported by the children’s best interests and the evidence presented. However, it reversed on multiple other grounds. The appellate court held that the trial court erred by failing to resolve who was responsible for the car payments and child support arrearages as promised in the provisional order. It also held that the trial court improperly excluded portions of premarital retirement account values and the value of the marital residence from the marital pot, and made valuation errors concerning other assets like the Bobcat and horse trailers.
The Court of Appeals further struck the non-disparagement clause as an unconstitutional prior restraint on speech. Although protecting children’s emotional well-being is a compelling interest, the clause here broadly barred negative speech to third parties, even when the children were not present. Under well-established First Amendment principles, such a sweeping restriction was not narrowly tailored and therefore violated constitutional protections. The Court emphasized that a limited restriction preventing disparagement only in the children’s presence might have been permissible but the broader gag on outside communications could not be upheld.
Accordingly, the Court of Appeals affirmed in part, reversed in part, and remanded with instructions for the trial court to correct the division of assets, resolve the deferred financial issues, and strike the non-disparagement clause from the dissolution decree.
In re: Adoption of R.G.B. and P.K.B. (December 26, 2024) (Adoption Home Study)
HELD: The Indiana Court of Appeals held that a juvenile court erred by granting an adoption petition without first requiring the statutorily mandated home study, because the adoptive parents were neither stepparents nor grandparents, and thus not eligible for the waiver exception.
FACTS AND PROCEDURAL HISTORY:
In 2022, Adoptive Parents were granted temporary, and later permanent, guardianship of Children. In February 2024, Adoptive Parents petitioned to adopt Children and simultaneously moved to waive the home study requirement, which the court granted the next day. At a July 2024 hearing, the birth mother objected to the adoption, but the trial court granted the adoption petition.
The Court of Appeals reversed, finding that the statutory requirements for waiving a home study—limited to stepparents or grandparents—were not met. The appellate court rejected arguments that the waiver could be justified by Adoptive Parents’ caregiving relationship and emphasized strict compliance with Indiana’s adoption statutes.
The case was remanded with instructions for a proper home study.
Gatton v. Gatton (December 18, 2024) (Pension)
HELD: The premarital portion of a pension is marital property. The premarital nature of a portion of a pension may be a factor for the trial court’s consideration in fashioning an equitable division of the overall marital estate, but it must be included by the trial court in the marital pot.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 2010, and dissolution proceedings were initiated in 2022. Husband retired only five months after the parties married, at which time he went into pay status on his Carpenter’s Union pension. It was uncontroverted that Husband’s pension was 98.8% accrued prior to the date of marriage.
After a final hearing, the trial court granted Husband’s request that only the 1.2% of his pension’s value that was accrued during the marriage would be in the marital estate. And the trial court divided the remaining overall marital estate equally between the parties. Wife appealed.
The Court of Appeals agreed with Wife that the trial court erred in including only the coverture portion of Husband’s pension in the marital pot. The Court expressly disapproved of the 2016 Morey case to the extent it endorsed this type of segregation of premarital property from the marital estate.
Nevertheless, the Court of Appeals concluded that the trial court had effectuated an appropriate overall division of the marital estate, even though it reached that result by improperly removing Husband’s premarital pension from the marital estate and dividing the remaining property equally. Instead, the trial court should have included all the pension and awarded Husband a disproportionate share of the marital estate to achieve the same result. Thus, the ultimate division of the parties’ marital estate was not an abuse of discretion, even if the trial court erred in how it reached that result.
The trial court’s order was affirmed.
Wohlt v. Wohlt (November 21, 2024) (Property Settlement Agreement Interpretation)
HELD: Indiana Supreme Court held that a property settlement agreement that awarded Husband “all” assets of the parties’ business unambiguously included cryptocurrency owned by the business, which both parties were aware of during the marriage, but forgot about during their dissolution proceedings.
FACTS AND PROCEDURAL HISTORY:
The parties’ divorce in 2016 was resolved by a property settlement agreement. The agreement awarded Husband all assets of the parties’ business, except that Wife was awarded certain specific business assets: two computers, a printer, a phone, and a tablet.
The following year, Husband realized that the company owned certain cryptocurrencies. It was undisputed that both of the parties knew about the cryptocurrencies during the marriage, but forgot about them during the divorce. Thus, the dispositive issue was this: did a property settlement agreement awarding Husband “all” assets of the business include the business’ forgotten cryptocurrency?
The trial court subsequently determined the cryptocurrency was an omitted asset of the marriage, and divided its value equally between the parties. The Court of Appeals reversed, holding that the property settlement agreement unambiguously awarded the cryptocurrency to Husband. Wife sought and was granted transfer to the Indiana Supreme Court.
A divided Indiana Supreme Court concluded that the agreement’s language awarding Husband “all” assets of the business—other than a few items unrelated to cryptocurrency—unambiguously awarded the business’ cryptocurrency to Husband.
Justice Goff dissented, arguing that an agreement distributing “all” assets of the business was ambiguous as a matter of law, thereby opening the door for the trial court to interpret the agreement as awarding Wife half the value of the cryptocurrency.
Emslander v. Baine (November 18, 2024) (Relocation)
HELD: Trial court erred when it granted Mother’s relocation based solely upon Father’s objection not technically complying with the formal requirements of the relocation statute.
FACTS AND PROCEDURAL HISTORY:
Mother and Father both lived in Syracuse, Indiana, when they divorced in 2023. In early 2024, Mother filed a notice of her intent to relocate with the parties’ two minor children to Crown Point. Father, pro se, filed an objection to Mother’s relocation.
At a hearing, Mother argued that Father’s objection did not follow the requirements of the relocation statute. The statute requires that the nonrelocating parent’s objection should also request a temporary or permanent order to prevent the relocation of the child, and appropriate modifications arising from any relocation. No evidence was presented to the trial court on the relevant factors for a requested relocation, including the best interests of the children. Nevertheless, the trial court concluded that, based upon Father’s technically defective objection, Mother was entitled to relocate. Father appealed.
The Court of Appeals wrote: “[W]e agree with Father that, under the facts and circumstances of this case, his technical noncompliance with the statute is insufficient to support the relocation order. It is a fundamental tenet of family law that all matters of child custody, including relocation, turn on the best interests of the children.”
The trial court’s order granting Mother’s relocation petition was reversed.
In re: the Adoption of K.B. & H.F. (November 8, 2024) (Adoption Consent)
HELD: Trial court erroneously concluded that Father’s weekly, one-hour supervised visits with the Children during the period of time leading up to the filing of the adoption petition were not sufficiently significant and, thus, improperly dispensed with the need of Father’s consent to the adoption.
FACTS AND PROCEDURAL HISTORY:
In 2018, the Children were removed from Father’s care and given to Foster Parents. Father and Mother had substantial drug and criminal issues leading up to the Children being taken away, which problems continued thereafter. Father was incarcerated for a period, and Mother later died of an overdose.
On March 13, 2020, Foster Parents filed a petition to adopt the Children. Father objected. At issue in the adoption court was whether, in the year leading up to the adoption petition being filed, Father had communicated significantly with the Children because, if not, his consent to the adoption was not required.
Father unsuccessfully argued to the trial court that visits he had with the Children for the first three months of that one-year period were sufficient to require his consent. These were weekly, one- or two-hour visits. Father attended the “majority” of them as scheduled. The trial court concluded in its findings that, “this Court cannot conclude weekly one-hour visitations that Father admits he missed from for being late or calling off from March 2019 through May 2019 . . . are significant such [sic] not to dispense with his consent.” The trial court granted the adoption, from which Father appealed.
The Court of Appeals noted that the burden was on Foster Parents to prove, by clear and convincing evidence, that Father failed to communicate significantly with the Children for the one-year period. The Court further noted that the evidence presented by the Foster Parents about Father’s visits during that year were focused on their frequency and duration, but no evidence “about the nature and quality of these visits.”
Since the Foster Parents failed to meet their burden of proof, the trial court’s determination dispensing with the need for Father’s consent, and the adoption petition being granted, were reversed.
Reel. v. Reel (March 28, 2024) (Contempt / Attorney Fee Award Case)
HELD: Trial court did not abuse its discretion when it: (i) denied Mother’s request to modify custody; (ii) denied Mother’s request to replace the GAL; and (iii) ordered Mother to pay approximately $79,000 toward Father’s attorney’s fees.
FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2014, with one child (“Child”). In 2019, a modification resulted in Father having primary physical custody of Child. At the beginning of the COVID-19 pandemic, the parties informally decided it made sense for Child to live with Mother, since Mother was able to work remotely while Father’s construction business prevented Father from doing so. However, four months later, Father wished to resume exercising parenting time at his residence, and Mother refused.
Father filed his first contempt petition against Mother; Mother quickly followed with a petition to modify custody, requesting primary physical custody of Child. Father also asked for a GAL. Following a hearing, the trial court ordered a phase-in transition of parenting time back to Father, and granted the appointment of a GAL.
Mother continued to frustrate Father’s attempts to exercise parenting time at his residence. Additional contempt petitions followed, along with increasingly strong-worded orders from the Court regarding Mother’s need to cooperate.
In March 2021, Father filed his sixth contempt petition; Mother filed a motion to change the GAL. Following a hearing, the trial court issued an order commanding Mother’s compliance, inviting the involvement of law enforcement to effectuate same, if necessary. The trial court also took no action on Mother’s request to change the GAL. Father was finally able to retrieve Child from Mother, but only with the assistance of law enforcement.
Following another hearing several months later, the trial court denied Mother’s petition to modify custody, essentially leaving Father with primary physical custody per the 2019 order. The trial court also denied Mother’s request to change the GAL. Finally, the trial court ordered Mother to pay Father’s attorney’s fees of $78,986. The trial court supported the fee award with references to Mother’s ongoing contemptuous behavior, and Mother’s income of approximately $140K/yr.
Mother appealed.
The Court of Appeals quickly dispensed with Mother’s appeal of the trial court’s denial of Mother’s request to modify custody as an invitation to reweigh the evidence in a highly discretionary determination by the trial court.
Similarly, on the trial court’s denial of Mother’s GAL change request, the GAL is an officer of the trial court, so the trial court—not Mother—was in the best position to determine whether the GAL’s actions were deficient. Also, to the extent Mother believed the GAL did not investigate matters that Mother believed were important, Mother was free to introduce evidence of those to the trial court independently of the GAL.
On the attorney fee award, Mother’s appeal focused on whether the fee award was a proper use of the trial court’s ability to issue contempt sanctions. However, the Court of Appeals reframed the issue as being one under Indiana’s general family law attorney fee statute. The statute simply requires the trial court to consider “the parties’ resources, their economic condition, their ability to engage in gainful employment and earn adequate income, and any other factors bearing on the reasonableness of the award,” including party misconduct. Here, the record establishing Mother’s level of misconduct, plus her significant income, supported the trial court’s attorney fee award.
The trial court’s order was affirmed.
In re: the Paternity of H.S.R. (April 12, 2024) (Child Support / Paternity Case)
HELD: In a complex paternity and child support dispute, trial court erred when it granted summary judgment in favor of Respondent because another man had executed a paternity affidavit, thereby, the trial court incorrectly reasoned, relieving Respondent of any duty to support.
FACTS AND PROCEDURAL HISTORY:
Mother gave birth to Child in 2009. Stirling executed a paternity affidavit two days later, and Child’s birth certificate reflected his last name. Mother subsequently initiated a paternity action against Stirling, but DNA testing undertaken during that case established Stirling was not the father, and the case was dismissed.
Mother then filed a paternity case against Bateson. The parties reached an agreed entry that recited Bateson was the father of Child, but further stated that Bateson’s parental rights would be terminated and Bateson would have no obligation of support. Importantly, the trial court declined to approve that agreed entry.
Mother subsequently decided to pursue a child support order against Bateson. However, Bateson moved for summary judgment on the basis that Stirling was established as the legal father with his execution of the paternity affidavit, which was never rescinded. During summary judgment argument, Mother contended that the Stirling case’s determination that Stirling was not the father, and related case dismissal, superseded the legal significance of the Stirling paternity affidavit. Nevertheless, the trial court granted summary judgment in favor of Bateson.
Mother appealed.
The Court of Appeals noted that Bateson’s sole argument to the trial court was that, because Stirling’s paternity affidavit established Stirling as the father, and it was never rescinded, Mother cannot now establish Bateson to be the father. However, the Court concluded that Mother had raised a genuine issue of material fact by designating evidence of the Stirling paternity matter, which established Stirling not to be the father, as well as the never-approved agreed entry of Mother and Bateson, in which Bateson acknowledged being the biological father of Child.
Because genuine issues of material fact had been established, it was error to grant summary judgment in Bateson’s favor. The matter was reversed and remanded.
Roush v. Roush (May 2, 2024) (Motion to Withdraw / Contempt Case)
HELD: The trial court abused its discretion when it granted Mother’s attorney’s motion to withdraw in violation of Trial Rule 3.1(H), which requires 10-day written notice of the intent to withdraw to be communicated to the client.
FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2019 with three children together. Mother established a pattern of violating court orders, resulting in two periods of contempt-related incarceration.
In September 2023, the trial court held a hearing on various pending issues, including another contempt petition against Mother. At the start of the hearing, Mother’s counsel advised the trial court that she had received an email earlier that morning from Mother, who advised that she was in Oklahoma and would not be appearing at the Indiana hearing. Mother’s counsel then orally moved to withdraw.
The trial court granted the withdrawal of Mother’s counsel, the hearing proceeded in Mother’s absence, and after which the trial court ordered Mother incarcerated for 180 days, to pay Father’s attorney’s fees in the amount of $8,876, and Mother was fined. Mother appealed.
Trial Rule 3.1(H) requires that an attorney may move to withdraw “upon a showing that the attorney has sent written notice of intent to withdraw to the party at least ten (10) days before filing a motion to withdraw.” Here, it was undisputed that the 10-day notice provision of Trial Rule 3.1(H) was not followed. Under the Court of Appeals’ analysis, the trial court granting the motion to withdraw was not harmless error: “While there is no question that Mother had notice of the hearing and failed to appear, her attorney was in court and could have, at least, cross-examined Father’s witnesses and made argument on Mother’s behalf.”
The trial court abused its discretion when it granted the withdrawal of Mother’s counsel and conducted the evidentiary hearing without her. The orders arising from that hearing were reversed, with orders that, on remand, the subject hearing should be reconducted by the trial court.
In re: the Adoption of M.J.H. (June 10, 2024) (Adoption Case)
HELD: Putative Father never registered with the putative father registry and, accordingly, the trial court did not err when it concluded that Putative Father’s consent to the adoption was irrevocably implied.
FACTS AND PROCEDURAL HISTORY:
Biological Mother gave birth to Child on August 20, 2020, and shortly thereafter was found to be a CHINS. DCS placed Child with Adoptive Mother. Putative Father was incarcerated when Child was born, and he never registered with the putative father registry.
On May 2, 2022, Adoptive Mother filed her petition to adopt Child. After learning of the petition, Putative Father filed a motion to contest the adoption. Adoptive Mother moved to dismiss same, arguing that, by failing to register with the putative father registry timely, Putative Father’s consent to the adoption was irrevocably implied. The trial court agreed and entered its adoption decree. Putative Father appealed.
The Court of Appeals discussed that the deadline for registry with the putative father registry, under the facts of this case, was not later than: (1) 30 days after the child’s birth, or (2) the date a petition for adoption is filed. Here, the trial court correctly concluded that Father’s deadline to register was on May 2, 2022, the date Adoptive Mother filed her petition for adoption.
The Court concluded: “Putative Father had approximately one year and ten months after the birth of his child to register, but he did not. . . . . Putative Father never registered with the putative father registry. Accordingly, the trial court did not err when it concluded that Putative Father’s consent to the adoption was irrevocably implied and granted the adoption.”
The trial court’s adoption order was affirmed.
Wallace v. State of Indiana (June 10, 2024) (Birth Certificate Gender Marker Case)
In 2023, Wallace, incarcerated at the Pendelton Correctional Facility, filed an ex parte petition for change of gender marker on Wallace’s birth certificate. Wallace’s birth certificate showed as “male,” but Wallace wished for it be changed to “female” because Wallace is living as a transgender female.
The trial court, without holding a hearing, dismissed Wallce’s petition, citing “public policy” and Wallace’s “confinement in the Department of Correction.” Wallace appealed.
The Court of Appeals reviewed the long and winding history of recent Indiana gender marker birth certificate cases. The statutory basis on which a gender marker change is requested is Indiana Code 16-37-2-10, which includes a requirement that the petitioner must provide “adequate documentary evidence” in support of the change. Here, Wallace “did not submit any ‘adequate documentary evidence’ or evidence supporting that his petition was made in good faith . . . . in the absence of documentary evidence and evidence of his good faith, we cannot say that the trial court erred in dismissing Wallace’s petition.”
The trial court’s dismissal was affirmed.
Two other judges wrote separately, concurring in result. Judge Foley’s separate opinion stated there is simply no statutory framework permitting the change that Wallace requested.
Stanley v. Stanley (June 24, 2024) (Marital Property / Implied Trust Case)
HELD: Trial court erroneously concluded a Lake House titled solely to Husband was entirely in the marital estate, when, in fact, Husband was holding four-fifths of the Lake House in an implied trust for his siblings.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 2006 and moved into the Lake House with Husband’s parents, which was owned by Husband’s parents. Husband’s Father died in 2011, and Husband’s Mother died in 2015.
Husband’s Mother’s will left the Lake House in equal shares to Husband and his four siblings, and did likewise with a house in Ohio that was in a state of disrepair. The siblings decided they needed to mortgage equity out of the Lake House to fund repairs to the Ohio house. However, doing so apparently required that the Lake House be in Husband’s name alone; as such, the Lake House was transferred into Husband’s name alone, a $125,000 mortgage was taken out, and those funds were used to renovate the Ohio house.
In 2020, Wife filed a petition for dissolution of marriage. Husband’s siblings intervened, seeking an order that four-fifths of the Lake House is held in trust for Husband’s siblings.
Following a hearing, the trial court ruled that the intervening siblings had not met their burden of establishing the existence of a trust, and that precluding Wife from having an interest in the Lake House would be “neither equitable or just.” The trial court concluded the entire Lake House was a marital asset. Husband and the siblings appealed.
The Court of Appeals reviewed what constitutes an express trust, versus an implied trust. The Court of Appeals agreed with the trial court that there was no express trust in this case. However, the Court of Appeals concluded an implied “resulting trust” had been established. Resulting trusts are “created by operation of law to give effect to the parties’ intentions when they have otherwise failed to satisfy the statutory requirements for creating an express trust.”
The Court continued: “it is clear that the siblings intended to convey the Lake House to [Husband] as a trustee for all the siblings, although the documents they executed did not expressly say as much.” The Court underscored that reaching this conclusion does not remove the entire Lake House from the marital estate, instead leaving Husband’s one-fifth interest in the marital estate.
The trial court’s order was reversed and remanded.
Guilfoyle v. Guilfoyle (July 9, 2024) (Grandparent Visitation Case)
HELD: Trial court did not err when it concluded Grandparents lacked standing to petition for visitation with Grandchild.
FACTS AND PROCEDURAL HISTORY:
Grandchild was born in 2021, when his Parents were unmarried. Father established paternity of Grandchild the following year.
In 2023, Father’s parents (“Grandparents”) filed a petition for grandparent visitation. They asserted that, though Parents were still married to each other, an order of protection precluded Father from having contact with Mother or Grandchild, and that Mother was denying Grandparents any contact with Grandchild.
Following a motion by Mother, the trial court ruled that Grandparents lacked standing to seek visitation with Grandchild. Grandparents appealed.
Grandparents conceded that they lacked standing based upon the 1999 JPH case, but they asked the Court of Appeals to revisit that decision. Grandparents argued that, while Parents may technically be married, a no-contact order frustrates the marriage from having significance in terms of their access to Grandchild.
Because the express provisions of the statute do no permit Grandparents to pursue visitation under the prevailing circumstances, the trial court correctly determined that Grandparents lacked standing.
The trial court’s order was affirmed.
Cooley v. Cooley (March 20, 2024) (Pension Case)
HELD: Indiana Supreme Court holds that trial courts have broad statutory authority to require security, when appropriate, in support of the division of marital property. Specifically in this case, the trial court acted within its discretion when it ordered Husband to have in place, and pay for, a life insurance policy that would secure property settlement payments Husband owed to Wife, if Husband died before they were fully paid.
HELD: If a divorce litigant wishes for the trial court to consider potential tax consequences in fashioning a fair and equitable division of the marital estate, the burden is on that party to present evidence of the purported tax consequences.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife were married for 26 years before Wife filed her petition for dissolution of marriage. Husband had a long career with the Morgan County Sheriff’s Department, which resulted in a pension that was valued for divorce purposes at over $1,100,000, making Husband’s pension over 85% of the entire marital estate.
Because Husband’s government pension could not be divided in-kind by a QDRO, the trial court had no real option but to award Husband the entire pension, and then order Husband to make property settlement payments to Wife, totaling $475,000 over time, thus equalizing the marital estate. The trial court ordered Husband to pay $400/mo against this obligation until he retired, at which time Husband would be required to pay Wife half his monthly pension payment, until the entire equalization amount was completed.
Central to the appeal, the trial court also required Husband to maintain and pay the premiums on a $475,000 life insurance policy, with Wife as the beneficiary, which policy amount could decline from time-to-time as the property settlement balance due was reduced.
Husband appealed both the life insurance requirement, as well as that the trial court’s decree did not reflect that Husband would need to pay income taxes on the pension payment he receives.
The Indiana Supreme Court noted that there is statutory authority at Ind. Code 31-15-7-8 and elsewhere that permits a divorce court to fashion security provisions for a divorce’s property division terms. The Indiana Supreme Court suggested it was highly relevant in this case that evidence had been presented that Husband intended to defy or otherwise evade his property settlement obligations to Wife and, thus, the trial court’s additional levels of security for the judgment was not capricious. The life insurance security provision of the Decree was affirmed.
On the tax consequence issue, the Indiana Supreme Court determined that Husband had waived that argument by not developing it at the trial court level. “[Husband] did not provide the court with any definitive evidence of what his actual or potential tax consequences will be when he retires and begins receiving monthly distributions.”
The trial court’s order was affirmed.
Bardonner v. Bardonner (March 12, 2024) (First Amendment Parenting Case)
HELD: An order that restricts a non-custodial parent’s ability to have the child participate in religious activities in not a violation of the First Amendment.
FACTS AND PROCEDURAL HISTORY:
The marriage of Mother and Father was dissolved in 2016, and their post-decree relationship was acrimonious and litigious. Mother was awarded legal custody of Child.
Various requests to modify custody and parenting time would follow. A 2018 order included a provision that:
Father will not bring [Child] to church services at All Saints Church. Father may bring [Child] to social activities only when church teachings are not the focus of the activity.
As a result of subsequent findings that Father had violated this restriction, a 2023 order tightened this restriction further:
[Child] should not be permitted to attend any function or event of All Saints Church, based upon Father’s abuse of the discretion afforded to him in the 2018 order . . . .
Father appealed.
Father’s argument focused on his First Amendment religious freedoms. However, the Court of Appeals rejected this argument on multiple bases. First, the order did not implicate Father’s free exercise of religion; Father remained free to attend whatever church, and at whatever time, Father wished.
Second, Ind. Code 31-17-2-7 expressly authorizes a custodial parent to determine a child’s religious training. Therefore, an order that acts in the furtherance of protecting Mother’s legal custody decision-making is consistent with Indiana law. “The bottom line is that Mother has the exclusive authority to dictate Child’s religious training, and she has decided that Child shall not participate in Father’s church.”
The trial court’s order was affirmed.
In re: the Paternity of L.A. (March 6, 2004) (Adoption Consent Case)
HELD: A Putative Father’s consent to Child’s adoption is irrevocably implied when he fails to register timely with the Putative Father Registry and, thus, he is barred from challenging an adoption or from establishing paternity.
FACTS AND PROCEDURAL HISTORY:
Birth Mother had Child in 2022. Two days later, Birth Mother executed an adoption consent and surrendered care and control of Child to KidsFirst Adoption Services. When Birth Mother executed an affidavit of birthfather identity, she stated she was unwilling to name Child’s biological father. Within days, Adoptive Parents took physical custody of Child and filed a petition to adopt Child.
What quickly became an issue was the timing of Putative Father’s registration with the Putative Father Registry. As applied to the facts of this case, that deadline was the later of: (a) 30 days after Child’s birth; or (b) the date of the filing of the petition for adoption. Here, Child was born on August 15; the adoption petition was filed on August 25; and Father registered on September 23.
Believing that the “within 30 days” provision applied to both the child’s birthday and the filing of the adoption petition, the trial court concluded that Father had registered timely because he registered within 30 days of the filing of the adoption petition. Following an unsuccessful motion to correct error, Adoptive Parents appealed.
After providing a summary of the history and operation of the Putative Father Registry, the Court of Appeals agreed with Adoptive Parents that the trial court had erroneously calculated the deadline for Father to have registered by giving Father until 30 days after the adoption petition was filed. “We, therefore, conclude that to comply with the Indiana Code . . . and to be entitled to notice of an adoption, a putative father must register with the Registry not later than thirty days after the child is born or not later than the date of the filing of the adoption petition, whichever is later.”
The trial court’s order was reversed.
Ivankovic v. Ivankovic (February 21, 2024) (Free Speech / Injunction Case)
HELD: Trial court did not err when it denied Wife’s request for an injunction to prevent Husband from disparaging Wife to Wife’s employer.
FACTS AND PROCEDURAL HISTORY:
Following the conclusion of the parties’ dissolution proceedings, Husband “began a campaign of harassment against Wife.” Wife filed with the trial court requesting a temporary restraining order and permanent injunction against Husband, claiming, in part, that Husband had contacted Wife’s employer and accused Wife of wrongdoing during the course of her employment. Wife believed that Husband was attempting to get Wife fired.
Following a hearing, the trial court concluded that it lacked the authority to grant Wife’s requested relief. Wife appealed.
The Court of Appeals discussed that an injunction on speech is a prior restraint and, thus, is viewed with disfavor. Such a prior restraint on speech passes constitutional muster only when a compelling state interest is at issue. The well-being of children is an established compelling state interest.
The Court focused on the fact that the veracity of Husband’s claims to Wife’s employer remained unknown: if Husband’s claims were true, then, the Court reasoned, Wife largely brought these problems upon herself; if Husband’s claims were false, then Wife had a potential defamation claim against Husband.
Without expressly deciding whether the trial court had the authority to grant Wife’s requested relief, the Court affirmed the trial court’s denial of Wife’s request for injunctive relief.
Drake v. Drake (October 31, 2023) (Relocation Case)
HELD: Trial court did not abuse its discretion when it denied Mother’s request to relocate with Child from Indianapolis to San Diego, citing findings that the relocation would not be in Child’s best interests.
FACTS AND PROCEDURAL HISTORY:
Mother and Father met in San Diego in 2016 while Father was stationed there with the Marine Corps. The parties married the following year and moved to Indiana in 2018. Child was born the same year.
In 2021, Mother filed her petition for dissolution of marriage and, shortly thereafter, a notice of intent to relocate with Child to San Diego. Mother recited better educational and employment opportunities for her in San Diego, as well as her support system there. Father objected.
Following a hearing, the trial court made detailed findings that, while Mother’s requested relocation was made in good faith, the relocation was ultimately not in Child’s best interests. Specifically, the long distance between Indianapolis and San Diego would undercut Father’s bond and parenting relationship with Child. And Mother’s educational and employment opportunities in San Diego were not substantially superior to those in Indianapolis. Mother appealed.
The Court of Appeals viewed Mother’s appeal as an invitation to reweigh the evidence that was presented to the trial court. Concluding that the trial court did not abuse its discretion in denying Mother’s relocation, its denial was affirmed.
Wilson v. Wilson (October 31, 2023) (Child Support Case)
HELD: Where a disabled adult child is the subject of a child support order, and the adult child receives Social Security Disability (“SSD”) benefits as a result of her disability, the trial court has the discretion to consider how—and if at all—the adult child’s SSD benefits should factor into the child support order.
FACTS AND PROCEDURAL HISTORY:
Father and Mother married in 2001 and had Emily the following year. Emily has special needs and will never be able to live independently or support herself.
In July 2021, Mother filed her Petition or Dissolution of Marriage. At the time of the final hearing, Emily was receiving SSD benefits arising from her disability in the amount of $840 per month. Mother submitted a proposed child support worksheet, based upon her and Father’s respective incomes, and without Emily’s SSD benefits being a factor in the calculation. This produced a proposed support obligation from Father to Mother in the amount of $262 per week. Father testified that he believed the SSD benefits were sufficient to provide for Emily’s needs and therefore no weekly child support should be ordered.
The trial court adopted Mother’s child support proposal in its final Decree, from which Father previously appealed. The Indiana Court of Appeals reversed the child support order, remanding the matter “to determine and make findings as to whether [Emily’s] overall financial needs are satisfied in whole or in part by the Social Security benefit she receives and for entry of Father’s support obligation which, if appropriate, includes an adjustment to the income [Emily] receives in Social Security benefits.”
On remand, the trial court issued numerous findings on Emily’s financial situation and the role the SSD payments play in her well-being. The trial court made a finding that giving Father any support reduction based upon Emily’s SSD benefits would have the effect of shifting the financial burden of providing for Emily to Wife’s family. As a result, no credit was given to Father and the trial court re-issued its original child support order of $262 per week. Father appealed again.
The Court of Appeals noted that case law and the Child Support Guidelines plainly address the role of a child support credit where a child receives SSD benefits as a result of the parent’s disability. But, the issue here—involving SSD benefits received due to the adult child’s disability—is not squarely addressed. The Court of Appeals emphasized that Emily is not receiving these benefits as a substitute for Father’s earnings and likened it instead to income a child might receive from employment. Since Guideline 3(F) permits a trial court to consider the income of an incapacitated child in fashioning a child support order, the same approach was appropriate here with SSD benefits. “We believe this same flexibility should be afforded a trial court when considering the effect, if any, that an incapacitated adult child’s SSD benefits should have in the calculation of a particular support obligation.”
The Court of Appeals held that the trial court did not abuse its discretion in concluding that Father should not receive any credit for Emily’s SSD benefits.
Wohlt v. Wohlt (October 27, 2023) (Omitted Asset Case)
HELD: A divorce Property Settlement Agreement awarded Husband all assets of the parties’ business, except for specific computer equipment awarded to Wife. It was later discovered that the business owned certain cryptocurrency that both parties forgot about. The language in the PSA that awarded Husband “all assets” of the business operated unambiguously to award Husband the cryptocurrency.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 2007. During the marriage, they operated Echo Systems (“Echo”), a cryptocurrency mining and trading company. Wife was the CFO of Echo, and Echo was owned in her name.
In 2015, Wife filed her petition for dissolution of marriage. Wife did not pursue formal discovery. The parties participated in mediation, which successfully resulted in a Property Settlement Agreement. Importantly, in the PSA, the parties agreed that Echo would be closed and that “Husband shall retain all assets of the business, except for the following items: Wife’s Mac computer and printer, iPhone, iPad, and laptop.” The PSA also included discovery waivers and standard language about each party having all information needed to settle the case.
After the divorce was finalized with the PSA, Husband found various cryptocurrency on a former Echo computer. Husband alerted his counsel of this development, who shared the discovery with Wife’s counsel. Wife filed a motion to divide an “omitted asset.”
Husband sought summary judgment that the language in the PSA that awarded him the assets of Echo was sufficient, by extension, to award him the cryptocurrency he uncovered on a former Echo computer. The trial court denied summary judgment, and later issued an order dividing the value of the discovered cryptocurrency equally between the parties. Husband appealed.
The Court of Appeals concluded that the PSA unambiguously awarded “all assets” of Echo to Husband which, by extension, included the cryptocurrency. “We find that this provision of the PSA unambiguously means that every asset owned by Echo would be awarded to Husband, apart from the five specifically listed items awarded to Wife.” The Court also found it significant that the PSA recited that the parties were entering into the agreement having waived rights to discovery.
The trial court’s order dividing the cryptocurrency was reversed, and summary judgment was entered in Husband’s favor.
In re: the Adoption of E.S.J. (September 28, 2023)
HELD: Trial court erroneously granted Father’s motion to transfer adoption proceedings, from Marion County to Johnson County—where Mother and Child lived—because Indiana’s adoption statute establishes preferred venue in, among other locations, a county in which the petitioner’s counsel maintains an office, and petitioner’s counsel maintained an office in Marion County.
FACTS AND PROCEDURAL HISTORY:
Mother and Stepfather filed a petition for Stepfather’s adoption of Child. The petition was filed in Marion County, where their attorney maintained an office. Father filed an objection to the adoption, and moved for transfer of the case to Johnson County, where Mother and Child lived. The trial court granted the Father’s requested transfer to Johnson County. Mother and Stepfather appealed.
The Court of Appeals reviewed Trial Rule 75, which governs venue generally, and preferred venue in particular. Important to this appeal, Trial Rule 75(A)(8) provides that preferred venue includes the county where a matter may be filed pursuant to “any statute recognizing or creating a special or general remedy or proceeding.”
Adoption proceedings are governed by Ind. Code 31-19-2-2, which statutorily provides for the filing of an adoption in the county in which: (1) the petitioner for adoption resides; (2) the licensed child placing agency or governmental agency having custody of the child is located; (3) the petitioner’s attorney maintains an office; or (4) the child resides.
Concluding that Ind. Code 31-19-2-2 is a special venue statute pursuant to Trial Rule 75(A)(8), and that Mother and Stepfather complied with it by filing their petition in a county in which their attorney maintained an office, “change of venue may not be granted.”
The trial court’s order granting Father’s petition to transfer venue was reversed.
Meyer v East (March 17, 2023) (Pension Valuation Case)
HELD: The trial court erred when it valued Wife’s INPRS pension based upon solely the duration of its five-year guarantee feature, rather than the present value of Wife’s expected lifetime benefits.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 1989. Wife was employed as a teacher during the marriage, participating in the INPRS Pension throughout her employment. The parties also had adult children, and a related Parent Plus Loan. (Parent Plus Loans are unsubsidized loans made to parents of dependent undergraduate students, in which the parent(s)—not the student—serve as the loan’s obligor.)
In 2020, Wife filed a petition for dissolution of marriage. At the final hearing, evidence was heard about Wife’s INPRS Pension. Under Wife’s INPRS pension, Wife was eligible to retire at age 56.5, receiving $1,919 per month for the rest of her life; in addition, Wife’s pension included a five-year guarantee feature, meaning that benefits would continue to be paid for five years after her retirement, even if Wife did not survive that long.
At the final hearing, Husband’s expert provided a traditional pension valuation, based upon Wife’s life expectancy, that assigned a value of $507,353 to Wife’s pension; Wife, however, without the support of any expert testimony, requested that the trial court adopt a value for her pension of only $115,191, which was the total of the five years of guaranteed payments. The trial court adopted Wife’s proposed value of $115,191 in its final Decree.
The trial court’s Decree also excluded from the marital estate the parties’ Parent Plus Loan, yet included a provision ordering Wife to pay the loan anyway.
On appeal, the parties agreed that the Parent Plus Loan was erroneously excluded from the marital estate.
As to the value of Wife’s pension, the Court of Appeals noted that, under the Indiana statute that expressly includes pensions as part of a marital estate, it is defined as “retirement benefits . . . that are payable after the dissolution of marriage.” Here, all of Wife’s expected future pension payments are “payable after the dissolution of marriage, not simply the payments she receives in the first five years. . . . we conclude that the trial court abused its discretion by failing to include a value of the pension after the five-year guarantee.”
The matter was reversed and remanded for further proceedings consistent with the opinion.
Ivankovic v. Ivankovic (March 15, 2023) (“Pet Custody” Case)
HELD: Under Indiana law, a family pet is personal property and, in a marriage dissolution, it should be awarded to one of the parties without any further provisions that undercut the awarded party’s exclusive possession thereof, such as requiring a visitation schedule or similar.
FACTS AND PROCEDURAL HISTORY:
In 2022, Husband filed his petition for dissolution of marriage. The parties had three children and a family dog, Roxy. Ownership of Roxy remained disputed and was submitted for adjudication as part of the final hearing. Afterwards, the trial court awarded Roxy to Wife, but also provided as follows:
The [C]hildren shall be permitted to bring Roxy to Husband’s home during their parenting time as they are also able to bring any other of their personal effects to Husband’s home during their parenting time. Neither parent shall attempt to influence the [C]hildren about bringing Roxy or to not bring Roxy to Husband’s home.
Wife appealed.
Wife’s argument on appeal was that it was error for the trial court to give the Children decision making authority over the possession and location of property—here, Roxy—that was awarded to Wife in the Decree. In response, Husband argued that the provision in the Decree was no different than permitting the children to bring other property, like a phone or tablet, back and forth during parenting time. The Court of Appeals agreed with Wife.
The Court noted that, under Indiana law, “animals are personal property.” And, “[a]s a consequence, whichever spouse is awarded the canine will have sole possession to the complete exclusion of the other.” The Court also noted a policy consideration that a new wave of “pet custody” cases would further drain limited judicial resources.
The trial court’s order allowing Roxy to travel back and forth between the parties’ residences was reversed.
In re: the Adoption of E.E. (February 28, 2023) (Adoption Case / Consent Validity)
HELD: Indiana statute generally requires that a consent to adoption, to be valid, must be executed in the presence of specific witnesses, such as the court or a notary. However, that requirement can be circumvented if there is independent confirmation that the execution was valid. Here, Father’s acknowledgment in his deposition testimony that he executed the consent freely and fairly constituted adequate confirmation of a valid execution.
FACTS AND PROCEDURAL HISTORY:
Mother became pregnant in 2020 and asked E.C. to adopt the Child. E.C. filed a petition to adopt Child, which recited Mother’s consent and stated that Child’s father was unnamed.
After Child was born, Father became aware of the adoption proceeding. E.C. filed a motion in the adoption matter to dispense with Father’s consent based upon him being unfit. However, before the issue could be adjudicated, Father elected to consent to the adoption. Father’s counsel prepared a detailed consent form, which Father then signed at home and not in the presence of a notary. Father provided the executed consent directly to E.C., whose counsel then filed the consent with the trial court.
Months later, on the eve of the final adoption hearing, Father filed a motion to withdraw his consent. E.C. subsequently deposed Father, wherein Father acknowledged executing the consent, and that he had reviewed it with his counsel beforehand and understood its import. The trial court subsequently determined Father’s consent to the adoption to be valid and binding, from which Father appealed.
Father’s argument on appeal was that the Consent was not valid because Father did not execute the Consent pursuant to statute. Ind. Code 31-19-9-2 provides that a consent may be executed in the presence of: (1) the court; (2) a notary public or other person authorized to take acknowledgements; or (3) an authorized agent of the department or licensed child placing agency.
While it was strictly correct that Father’s execution of the Consent did not comply with this statute, the Court of Appeals relied heavily on the 2003 Baxter case. In Baxter, the Indiana Supreme Court held that “if the written consent is not executed in the presence of any of the [statutorily specified witnesses], the validity of the consent may nevertheless be satisfied by evidence that the signatures are authentic and genuine in all respects and manifest a present intention to give the child up for adoption.”
The Court went on to underscore the importance of Father’s own deposition testimony, in which he acknowledged signing the Consent, and understanding its legal significance after conferring with his counsel.
The trial court’s determination that Father’s consent was valid and binding was affirmed.
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.”
Roetter v. Roetter (August 20, 2021) (Spousal Maintenance / Property Division)
HELD: Trial court acted within its discretion when it awarded Wife spousal maintenance for 18 months rather than the three years she requested.
HELD: Trial court erred in its approach to ascertaining and dividing the marital estate when it “set off” certain property to each party before making its division.
FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 2014, at which time Husband had considerably more assets than Wife. There were two children born of the marriage. Wife became a full-time mother and homemaker, while Husband earned over $100,000/yr at his job. One of the parties’ children is on the autism spectrum and requires considerable supervision and care.
Wife filed for dissolution in late 2019. The parties resolved custody, parenting time, and child support by agreement. Property division and spousal maintenance remained contested. At the final hearing, Wife requested spousal maintenance of $100/wk for three years, citing her demanding childcare responsibilities. She also requested 55% of the marital estate.
Husband objected to Wife’s spousal maintenance request. On property division, Husband asked that he be credited for his IRA and 401(k) balances as they existed on the date of marriage, but that appreciation thereafter and all other property be divided 50/50.
The trial court’s subsequent Decree awarded Husband the values of his IRA, 401(k), and two life insurance policies at their respective date of marriage values. The Decree also assigned Wife the student loan debt she brought into the marriage. The trial court then calculated the value of all other assets of the marriage and divided them 55/45% in favor of Wife.
On Wife’s maintenance claim, the trial court ordered Husband to pay Wife $100/wk for 18 months, rather than the three years Wife had requested. The trial court’s rationale was that $12,000 had been advanced to Wife during the pendency of the case, which Wife could retain in lieu of a longer maintenance stream. Wife appealed.
Wife argued that her obligation to provide a high level of care for the children will last longer than three years, so a full, three-year maintenance award was warranted. But the Court of Appeals observed that maintenance determinations are highly discretionary and, moreover, the trial court’s decision to let Wife keep the $12,000 advance left her better off than had it awarded Wife three years of maintenance, but applied the $12,000 advance towards Wife’s property settlement.
On the property division, the Court of Appeals recited the two-step process for dividing property: account for all property of the marriage, and then determine whether a deviation from the presumed 50/50 division is warranted. Here, the Court of Appeals erred when it effectively “set off” to Husband his significant premarital assets, and then “set off” to Wife her premarital debt. Had that property been included in the trial court’s overall division analysis, it would have made for a 75/25% division of the marital estate in Husband’s favor.
The trial court’s division of property was reversed. The Court of Appeals instructed on remand that the trial court “fashion a remedy closer to the fifty-five, forty-five split Wife requested.”
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.
