In re Marriage of Popejoy, 19A-DR-2887

• Citation: 19A-DR-2887
• Case Date: July 14, 2020
• Court: Court of Appeals of Indiana

In the Matter of the Marriage of: Joni Popejoy, Appellant-Petitioner,
v.
David Popejoy, Appellee-Respondent.

No. 19A-DR-2887

Court of Appeals of Indiana

July 14, 2020

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

Appeal from the Pulaski Circuit Court The Honorable Mary C. Welker, Judge Trial Court Cause No. 66C01-1205-DR-29

ATTORNEY FOR APPELLANT Michael R. Auger Franklin, Indiana

ATTORNEYS FOR APPELLEE Robert A. Plantz Aaron C. Lopez Robert A. Plantz & Associates, LLC Merrillville, Indiana

MEMORANDUM DECISION

KIRSCH, JUDGE

[¶1] Joni Popejoy ("Mother") appeals the trial court's order modifying child custody, parenting time, and child support. She raises the following restated issues for our review:

I. Whether the trial court abused its discretion when it modified child custody, parenting time, and child support because Mother asserts that those issues were not raised to the trial court; and

II. Whether the trial court abused its discretion when it denied Mother's motion for a continuance of the final hearing

[¶2] We affirm.

Facts and Procedural History

[¶3] Mother and David Popejoy ("Father") were previously married and share three children from their marriage. Appellant's App. Vol. II at 3, 4, 7, 29. Mother and Father had joint custody of the children. Id. at 25. On June 1, 2018, Mother filed a Verified Motion for Contempt Regarding Parenting Time, alleging that Father was withholding parenting time from Mother and had failed to pay child support. Id. at 22-23. On that same date, Mother also filed a Rule to Show Cause and Application for Temporary Emergency Removal of Children From Their Current Place of Residence. Appellee's App. Vol. 2 at 2-3. Paragraph three of that filing stated "[t]hat since the entry of this Court's Order, there has been a change in circumstances so substantial and continuing so as to make the current child custody Order not in the best interest of said minor children." Id. at 2. In paragraph five, Mother requested that the trial court "give [Mother] temporary emergency physical and legal custody of [the children]." Id. Mother further asked the trial court to "give [Mother] temporary emergency custody, both physical and legal, of the minor children, allowing [Mother] to remove the children from the County of Pulaski, Indiana and take them to the County of Hamilton, Indiana." Id. at 3.

[¶4] On June 4, 2018, Mother filed a Notice of Intent to Relocate and indicated that she would be moving from Pulaski County, Indiana to Noblesville, Indiana. Appellant's App. Vol. II at 25. On June 20, 2018, Father filed his Objection to Relocation. Id. at 28. On July 6, 2018, a hearing was held on Mother's Motion for Contempt, Mother's Notice of Intent to Relocate, Mother's Petition to Modify Custody, and Father's Objection to Relocation. Id. at 29. After the hearing, the trial court issued an order on August 16, 2018, appointing a guardian ad litem to investigate the issues of custody and parenting time and approving the parties' Temporary Agreement regarding parenting time. Id. at 29-30.

[¶5] On December 17, 2018, a telephonic pretrial conference was held, and the matter was set for a custody hearing on April 11, 2019. Id. at 12. On April 4, 2019, Mother filed a Motion to Continue the April 11, 2019 custody hearing, specifically requesting that the trial court "continue this matter for a [c]ustody [h]earing on a time and date in which both parties and this Court can agree." Id. at 33. The trial court set the matter for a telephonic pretrial conference on April 5, 2019, and at that hearing, Mother's Motion to Continue was denied and Mother's counsel notified the trial court that he would be filing a Motion to Withdraw. Id. at 14. On that same date, counsel for Mother filed his Motion to Withdraw, and the motion was granted by the trial court on April 8, 2019. Id. at 34, 35.

[¶6] On April 11, 2019, the parties appeared for the custody hearing. Tr. Vol. 2 at 16-17. At the beginning of the hearing, Mother, who was representing herself, requested a continuance to "seek legal counsel" because she claimed she was unaware of the law and felt like she needed an attorney to proceed. Id. at 17. After some argument from the parties, the trial court denied Mother's request for a continuance, maintaining that she had already gone through three attorneys and that the reason her attorney was forced to withdraw was because of Mother's own actions and specifically stating that "based on the information I have, the reason for the loss of an attorney is of your own doing, ma'am." Id. at 39. The trial court also determined that if it continued the hearing, there would be no time available until August 2019, and the trial court did not believe that it would be fair for the children to wait that long for a resolution. Id.

[¶7] During the hearing, evidence was heard concerning the issues of custody, parenting time, and child support. At no time did Mother object to litigating these issues or claim that she had not received notice that these issues would be addressed at the hearing. Id. at 16-141. At the conclusion of the hearing, the trial court took the issues of permanent custody, parenting time, and child support under advisement. Appellant's App. Vol. II at 38. On November 12, 2019, the trial court issued its order, awarding custody of the three children to Father, ordering parenting time in accordance with the Indiana Parenting Time Guidelines, and child support in accordance with the attached Child Support Worksheet. Id. at 18-21. Mother now appeals.

Discussion and Decision

I. Modification

[¶8] "We review custody modifications for an abuse of discretion 'with a preference for granting latitude and deference...