Lyons v. Parker, 21A-JP-386

• Citation: 21A-JP-386
• Case Date: August 12, 2021
• Court: Court of Appeals of Indiana

Kelly Lyons, Appellant-Respondent,
v.
Harold Parker, Appellee-Petitioner.

No. 21A-JP-386

Court of Appeals of Indiana

August 12, 2021

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 Putnam Superior Court The Honorable Daniel W. Kelly, Special Judge Trial Court Cause Nos. 67D01-1711-JP-75 67D01-1711-JP-76

ATTORNEYS FOR APPELLANT Riley L. Parr Lebanon, Indiana Randall L. Parr Indianapolis, Indiana

ATTORNEY FOR APPELLEE Scott F. Bieniek Bieniek Law, P.C. Greencastle, Indiana

MEMORANDUM DECISION

Kirsch, Judge.

[¶1] Kelly Lyons ("Mother") appeals the trial court's order granting Harold Parker's ("Father") motion to modify custody. Mother raises several issues for our review on appeal, and we find the following issues dispositive:

I. Whether Special Judge Daniel W. Kelly ("Special Judge Kelly") had jurisdiction to issue orders and make rulings in the case; and

II. Whether the trial court abused its discretion when it denied Mother's motion to continue the hearing on Father's motion to modify custody

[¶2] We reverse and remand.

Facts and Procedural History

[¶3] Mother and Father are the parents of twin girls, H.P. and E.P. ("the Twins"), who were born in April 2014. Appellee's App. Vol. 2 at 2. From April 19, 2018, until August 8, 2019, Mother and Father shared joint legal and physical custody of the Twins. Id.; Appellant's App. Vol. II at 36-39. In August 2019, the trial court conducted an expedited hearing to modify custody because the Twins's enrollment in kindergarten made the joint custodial arrangement impractical. Appellant's App. Vol. II at 36-39. The trial court found no "decisive advantage" in favor of either parent, and after expressing concerns about Mother's work schedule and its impact on the Twins, the trial court awarded primary physical custody of the Twins to Mother, subject to Father's parenting time under the Indiana Parenting Time Guidelines. Id.

[¶4] On January 9, 2020, Mother filed a petition to modify parenting time and simultaneously filed a petition for change of judge and transfer of venue. Id. at 48-54. In her petition to modify parenting time, Mother asserted that she and Father were experiencing difficulties with transportation concerning midweek visitations. Id. at 52-54. On January 17, 2020, Father filed a petition to modify custody and a partial opposition to Mother's petition for change of judge and change of venue. Id. at 55-59. On February 6, 2020, Mother and Father entered into an Agreed Entry, providing, in pertinent part, that the parties agreed that: (1) Mother's motion for change of venue was denied; (2) Mother's motion for change of judge was granted; (3) under Trial Rule 79(D), the case would be submitted to Magistrate Melinda Jackman-Hanlin ("Magistrate Jackman-Hanlin"), subject to her acceptance of the appointment as special judge; and (4) a guardian ad litem ("GAL") would be appointed to represent the interests of the Twins. Id. at 60-61. The trial court approved the Agreed Entry on February 7, 2020. Id. at 62.

[¶5] Magistrate Jackman-Hanlin did not file an acknowledgment and acceptance of her appointment as special judge in the case. Id. at 2-26. Nothing further was done by either party or the trial court to ensure that a special judge was appointed. Id. Neither party notified the trial court that Magistrate Jackman-Hamlin did not file an acknowledgement and acceptance of the appointment within the time frame provided in Trial Rule 79(D), ^[1] and neither party sought the appointment of a special judge under Trial Rule 79(H).^[2] Id.

[¶6] On August 6, 2020, Father filed a Motion to Set Hearing on All Contested Issues. Id. at 67-68. Special Judge Kelly, as the trial court, issued an order on the same date setting all pending matters for hearing on February 5, 2021 and ordering the GAL to prepare and file a report at least thirty days before the scheduled hearing. Id. at 69. Neither party objected to the trial setting with Special Judge Kelly. Id. at 2-26. The GAL filed his report with the trial court on January 26, 2021. Id. at 71-90. On January 28, 2021, Father filed a Motion for Telephonic Testimony, which was granted by the trial court the next day. Id. at 126-27.

[¶7] On January 29, 2021, Mother, by counsel, filed a Motion to Continue the Modification Hearing, alleging that: (1) the GAL submitted his report on January 26, 2021, and counsel shared and discussed the report with Mother; (2) there had been a breakdown in the attorney-client relationship, and counsel was no longer able to adequately represent Mother's interests; and (3) Mother would require additional time to hire new counsel and prepare for the modification hearing. Id. at 129-30. On the same date, Father filed an objection to the request for a continuance, citing the GAL's report and that any further delay in holding the hearing would result in harm to the Twins. Id. at 132-33. On February 1, 2021, the trial court, by Special Judge Kelly, denied Mother's motion to continue the modification hearing. Id. at 139. On February 2, 2021, Mother's attorney filed a Motion for Leave to Withdraw Appearances, which the trial court granted on February 3, 2021. Id. at 136-37, 138.

[¶8] On February 5, 2021, Special Judge Kelly conducted a hearing on Father's petition to modify custody at which Father appeared in person and by counsel, and Mother appeared pro se. Tr. Vol. II at 1-116. At the hearing, the GAL testified and recommended that Mother and Father continue to share joint legal custody, but that physical custody be modified in favor of Father. Id. at 6. At the conclusion of the hearing, the trial court took the matter under advisement. Id. at 113, 115.

[¶9] On February 9, 2021, Special Judge Kelly issued an order questioning whether he had authority to issue a custody order due to Mother's motion for a change of judge and the Agreed Entry from February 7, 2020 approved by the trial court that appointed Magistrate Jackman-Hanlin as special judge, subject to her acceptance. Appellant's App. Vol. II at 140-41. The trial court stated that it believed that it was without authority to issue an order at that time and only had the authority, under the local rule, to refer the case to the presiding judge for appointment of an alternative special judge. Id. However, the trial court further stated that if both parties submitted in writing their consent for Special Judge Kelly to reassume jurisdiction of the case, then he would proceed to issue an order on the modification issue. Id. On February 19, 2021, both parties submitted an agreed entry in which they consented to Special Judge Kelly reassuming jurisdiction over the case. Id. at 142.

[¶10] Special Judge Kelly, acting as the trial court subsequently issued an order that modified custody and awarded Father primary physical custody of the Twins and found that Mother should have parenting time no less than that provided by the Parenting Time Guidelines and that Mother and Father should both retain joint legal custody. Id. at 143-45. Mother now appeals.

Discussion and Decision

I. Jurisdiction of Special Judge

[¶11] Initially, we note that Mother argues that the trial court's order is void because Special Judge Kelly lost jurisdiction when he approved the Agreed Entry entered into by Mother and Father...