Allen v. Proksch

• Court: Indiana Supreme Court
• Writing for the Court: Sharpnack
• Citation: Allen v. Proksch, 832 N.E.2d 1080 (Ind. 2005)
• Decision Date: 17 August 2005
• Docket Number: No. 32A05-0412-CV-686.,32A05-0412-CV-686.
• Parties: David L. ALLEN, Appellant-Respondent, v. Vickie (Wamsley) PROKSCH, Appellee-Petitioner.

832 N.E.2d 1080

David L. ALLEN, Appellant-Respondent, v. Vickie (Wamsley) PROKSCH, Appellee-Petitioner.

No. 32A05-0412-CV-686.

Court of Appeals of Indiana.

August 17, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William G. Brown, Katherine S. Brown, Brown & Somheil, Brazil, for Appellant.

Katherine A. Harmon, Baxter James & Rose, Indianapolis, for Appellee.

OPINION

SHARPNACK, Judge.

David L. Allen ("Father") appeals the trial court's order denying his motion to transfer and the trial court's order granting maternal grandmother, Vickie Wamsley Proksch ("Grandmother"), legal and physical custody of Father's son, C.A. Father raises four issues, which we consolidate and restate as:

I. Whether the trial court erred by concluding that Father was estopped from challenging the trial court's jurisdiction over the particular case; and

II. Whether the trial court abused its discretion by granting custody of C.A. to Grandmother.

On cross-appeal, Grandmother raises one issue, which we restate as:

III. Whether the trial court abused its discretion by ordering Grandmother to pay $4,500 of Father's attorney fees.

We affirm in part and reverse in part.

The relevant facts follow. Father and Beth Manion ("Mother") had a child, C.A., who was born on July 1, 1994. Father and Mother were married in August 1994, and their marriage was dissolved in July 1995. Father and Mother's dissolution proceedings were held in Clay County. As part of the dissolution, Father and Mother entered into an agreement regarding custody and support in which they agreed that they would share joint legal custody of C.A. and that Mother would have physical custody of C.A. They also agreed that Father would pay $25.00 per week for child support. On July 5, 1995, the trial court approved the agreement, ordered the parties to comply with the terms of the agreement, and entered a decree of dissolution.

Between 1995 and 1997, Father saw C.A. five to six times. In March 1997, Father filed an information for contempt against Mother and alleged that Mother was in contempt of the trial court's dissolution order because she had "consistently denied [Father] visitation" with C.A. Appellant's Appendix at 43. In September 1999, Father filed another information for contempt against Mother and alleged that Mother had "consistently denied [Father] visitation" with C.A. and that Mother had "moved numerous times since the Dissolution of Marriage and [had] failed to advise [Father] of her whereabouts further hampering his visitation rights." Id. at 45. In December 1999, pursuant to an agreement reached between Father and Mother, the trial court entered an order that required Father and Mother "to exchange addresses and phone numbers in the event of moving or in the event telephone numbers should change, within 24 hours of any such change." Id. at 47. The order also required Mother, who was then living in Indianapolis, to provide transportation for C.A. when he visited Father.

From 1999 to 2001, Father had regular visits with C.A. Father had remarried to Michelle Allen ("Stepmother"), who had two sons ("the stepsons") from a previous marriage. In the summer of 2001, C.A. was at Father's house and was playing outside with the stepsons. Stepmother looked out the window and saw C.A. "humping" the neighbor's dog. Appellant's Appendix at 447. Stepmother went outside and told C.A. to stop because it was disgusting, and C.A. told her that he was just showing the stepsons what Mother does with her boyfriends. The Department of Family Services ("DFS") later came to Father and Stepmother's house because Mother had called and told them that the stepsons were humping C.A. in their bedroom. DFS interviewed the stepsons and dropped the investigation. Thereafter, during a phone conversation with Mother, Father told her that he did not feel that it would be a good idea for C.A. to stay with him during the summer. Stepmother also told Mother that C.A. was not welcome in her home for the summer. After that conversation, Father did not have any contact with C.A. until 2003 when Mother initiated this lawsuit.

In June 2002, Mother left C.A. in Grandmother's care for the weekend, but he ended up staying permanently. Father continued to pay child support, but Mother used the child support payments to pay off her bills. In September 2002, Mother, who was apparently living in Hendricks County at that time, went to the Hendricks County Prosecutor's Title IV-D office and requested that the prosecutor file a request to modify child support. In December 2002, the Hendricks County Prosecutor, pursuant to Ind.Code § 31-16-20-1, filed a petition to transfer the jurisdiction of the child support order from Clay County to Hendricks County. At the time of filing the petition, Mother was living in Hendricks County, Father was living in Putnam County, and C.A. was living in Marion County with Grandmother. The petition was not verified, and Father did not receive notice of the petition. That same month, the Clay County court, without holding a hearing, granted the petition to transfer the case to Hendricks County.

On December 30, 2002, the Hendricks County court entered an order acknowledging the transfer of the case and requiring the parties to file a written response by January 31, 2003. On January 9, 2003, Mother filed a petition to modify child support. On January 28, 2003, Father filed a petition to transfer the case back to Clay County and alleged that he did not have notice of the State's petition to transfer the case to Hendricks County. Contemporaneous with the filing of his petition to transfer, Father filed a petition to modify custody and an information for contempt against Mother for denying Father visitation with C.A. and for not advising him of her address since December 2001.

On March 10, 2003, Grandmother sent a letter to Father telling him that she wanted to meet with him to talk about C.A. and asking him to call her. Father called Grandmother a few days later, but she did not tell Father that C.A. was living with her. On March 19, 2003, Grandmother filed a motion to intervene and a petition to modify custody in which she sought custody of C.A. On April 23, 2003, Mother and Grandmother filed an agreed entry wherein Mother stated that she agreed that it was in the best interests of C.A. if Grandmother was granted custody of him. The agreed entry was not signed by Father and was not approved by the trial court.

On May 28, 2003, Father filed an information for contempt against Grandmother for denying Father visitation with C.A. On May 29, 2003, the trial court held a hearing on Father's petition to transfer and Grandmother's motion to intervene. Father and Grandmother appeared at the hearing, but Mother did not. The trial court entered an order in which it: (1) denied Father's petition to transfer and retained jurisdiction of the case; (2) granted Grandmother's motion to intervene; (3) appointed a guardian ad litem; and (4) gave Father supervised parenting time.

On November 24, 2003, the guardian ad litem filed her final report wherein she recommended that Grandmother be granted custody of C.A. Specifically, the guardian ad litem's report provided:

[C.A.'s] affections and sense of safety are so interwoven in Grandmother and [Grandmother's husband,] Gary, that to sever them would seriously spoil and endanger [C.A.'s] future emotional wellbeing at this time. To uproot [C.A.] from the first stable environment that he has experienced and to place custody with Father would send [C.A.] back to square one, with his emotional needs being all scrambled (ADHD, ODD, and depression).¹ This would have a long-term effect upon him.

GAL [guardian ad litem] recognizes that the law has a preference for natural parents to have physical custody of their children, but GAL recommends that Grandmother be given the legal and primary physical custody of [C.A.].

Appellant's Appendix at 89-90.

On November 26, 2003, Father filed a motion for a psychiatric evaluation of C.A. On December 4, 2003, Father renewed his petition to transfer jurisdiction to Clay County. That same day, the trial court held a hearing on all pending motions. Prior to the hearing, the trial judge and the guardian ad litem met with C.A. in chambers, and C.A. told the judge that he wanted to stay with Grandmother. During the hearing, the trial court granted Father's motion for a psychiatric evaluation, and Mother dismissed her motion to modify support. Also during the hearing, the trial court denied Father's renewed petition to transfer but offered to certify it for interlocutory appeal. Father declined the trial court's offer for an interlocutory certification. The trial court later entered an order regarding Father's petition to transfer and concluded that Father was estopped from challenging the trial court's jurisdiction over the particular case.² Specifically, the trial court's order provided:

* * * * *

On December 27, 2002, this case was transferred in from Clay County Superior Court. Indiana Code [§] 31-16-20-3 required this court to accept the transfer.

On December 30, 2002, Hendricks Superior Court 3 ordered the parties to file with the Court a written response of pending motions by January 31, 2003.

On January 28, 2003, Father, by counsel, filed three motions, namely:

1) Petition to Transfer;

2) Petition to Modify; and

3) Petition for Contempt.

In his January 28, 2003, Petition to Transfer, and his December 3, 2003 Renewed Motion to Transfer, Father objects to this court's jurisdiction over this case — i.e. to venue. Specifically, Father argues that he was not notified and given an opportunity to be heard in Clay County on the State of Indiana's Petition to Transfer.

Indiana Code [§] 31-16-20-5 requires the Petition to Transfer be verified, requires notice be given to the other parent, and a hearing on the petition before an order to transfer is entered. A review of the file indicates that the ...