Pete v. Forrester
| Decision Date | 01 December 2016 |
| Docket Number | Court of Appeals Case No. 48A02-1604-GU-847 |
| Parties | Christopher Pete, Appellant-Defendant, v. Ray Forrester, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
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.
ATTORNEYS FOR APPELLANT
Cynthia a. Marcus
Fishers, Indiana
ATTORNEY FOR APPELLEE
Jane G. Cotton
Anderson, Indiana
Appeal from the Madison Circuit Court
The Honorable Mark K. Dudley, Judge
The Honorable Jason Childers, Commissioner
Case Summary [1] Following the entry of an order appointing Ray Forrester guardian of two minors, K.E. and D.F., Christopher Pete filed a number of motions requesting the trial court to set aside Forrester's guardianship and appoint Pete guardian instead. An evidentiary hearing on Pete's motions was commenced, but the hearing was not concluded due to time constraints. Before the trial court had the opportunity to hear the remainder of the evidence and rule on Pete's motions, Pete initiated this appeal.
[2] Concluding that Pete's appeal is premature, we dismiss.
[3] Because the evidence in this case was not concluded and the trial court was not given the opportunity to issue a ruling on Pete's motions, the facts are unsurprisingly in dispute. The parties, however, seem to be in agreement on certain key facts. Beginning in 2012, Pete was involved in a romantic relationship and cohabited with Charlotte Forrester (Mother) and her children from two previous relationships, K.E. and D.F. (the Children). Pete and Mother never married, and when their relationship ended in 2014, Mother moved in with her father, Forrester (Grandfather). The Children remained in Pete's custody during the week and regularly spent weekends and holidays with Mother at Grandfather's house, although the precise division of time is in dispute. The Children continued to see Grandfather after Mother moved out of Grandfather's home in April 2015, but not as much. The parties are in agreement that the Children continued to reside primarily with Pete during thistime, but the precise amount of time the Children spent with Pete versus Mother versus Grandfather is unclear from the scant record.
[4] In March of 2016, Mother executed consents to establish guardianship over the Children in Grandfather. Grandfather subsequently filed petitions to establish guardianships over the Children, in which he falsely averred that the Children were then residing with him.1 On March 22, 2016, the trial court awarded Grandfather guardianship of the Children without holding a hearing. Pete was not given notice of the guardianship proceedings, and he only became aware of the proceedings when custody of the Children was transferred to Grandfather.
[5] Upon learning of the guardianship, Pete filed a motion to intervene in the guardianship proceedings and an "Emergency Motion for Temporary Guardianship and to Stay Guardianship Order." Appellant's Appendix at 29, 32. Shortly thereafter, Pete filed separate motions requesting that Grandfather's guardianships over the Children be terminated and that Pete be appointed guardian instead. A hearing was held on Pete's motions on April 15, 2016, but the time allotted for the hearing expired before Pete was able to finish presenting his evidence, and Grandfather was unable to even begin his presentation. The trial court instructed the parties to contact court staff in orderto schedule an additional hearing to conclude the evidence, and at that time, Pete orally requested immediate custody of the Children pending the completion of the evidentiary hearing. The trial court denied Pete's request and the parties agreed to continue the presentation of the evidence on May 27, 2016. Instead of doing so, Pete filed his notice of appeal. This appeal ensued.2
[6] As an initial matter, we note that the motions panel of this court denied Grandfather's motion to dismiss this appeal on the grounds that Pete was not appealing from a final judgment. This does not, however, preclude us from reconsidering the issue. It is well established that we may reconsider a ruling of our motions panel, but "'we decline to do so in the absence of clear authority establishing that it erred as a matter of law.'" Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 12 (Ind. Ct. App. 2006) (quoting Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1134, 1141 (Ind. Ct. App. 2003)), trans. denied. See also Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (). After carefully reviewing the record, we are persuaded that this is such a case.
[7] Except as provided in Ind. Appellate Rule 4,3 this court has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A); Whittington v. Magnante, 30 N.E.3d 767, 768 (Ind. Ct. App. 2015). "Whether an order is a final judgment governs the appellate courts' subject matter jurisdiction." Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). "The lack of appellate subject matter jurisdiction may be raised at any time, and where the parties do not raise the issue, this court may consider it sua sponte." In re Estate of Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012).
[8] A final judgment is one that "disposes of all claims as to all parties[.]" Ind. Appellate Rule 2(H)(1); see also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct. App. 2002) (explaining that a final judgment "disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues" (quoting Hudson v. Tyson, 383 N.E.2d 66, 69 (Ind. 1978)). Because the evidence in this case was not concluded and the trial court did not rule on Pete's motions, he is not appealing from a final judgment within the meaning of App. R. 2(H)(1).
[9] In his response to Grandfather's motion to dismiss this appeal, however, Pete argued that his Emergency Motion for Temporary Guardianship and to Stay Guardianship Order should have been treated as a Trial Rule 60(B)(3) motionfor relief from judgment due to fraud on the court based on Grandfather's false representation in his guardianship petition that the Children were living with him. See T.R. 60(B)(3) (). Pete further notes that rulings on T.R. 60(B) motions are deemed final and appealable. See T.R. 60(C) (); App. R. 2(H)(3) ().
[10] Even if we accept Pete's argument that his Emergency Motion was in substance a T.R. 60(B)(3) motion for relief from judgment and should have been treated as such, the fact remains that Pete initiated this appeal before the evidence was concluded and before the trial court had the opportunity to issue a ruling thereon. In other words, the trial court has not yet issued "a ruling or order . . . denying or granting relief" under T.R. 60(B). See T.R. 60(C). To the extent Pete argues that the trial court's denial of his oral motion for immediate custody of the Children pending the completion of the evidentiary hearing should be treated as a denial of relief under T.R. 60(B), we disagree. Pete...
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