Family Law Case Review

Case: A.T. (Mother) v. G.T. (Father)

Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll
(with thanks to Kathleen Rudis) 

 

HELD: The Indiana Court of Appeals held that the trial court should have automatically granted Mother’s request for automatic change of judge under Trial Rule 76(B).  Mother was not required to make the request within three days after receiving notice that a trial date had been set, as Trial Rule 76(C)(5) applies only when a hearing has been held and the trial date was orally set at that hearing.

FACTS AND PROCEDURAL HISTORY: Mother and Father were divorced in 2009, in Kentucky.  The Kentucky Court awarded joint custody of the two minor children to Mother and Father, with Father to act as the primary custodial parent.

Later, Mother, Father, and the children moved to Madison, Indiana.  In February, 2010, a no contact order was issued by the Jefferson, Indiana, Superior Court based on allegations of domestic violence by Father upon Mother. The Kentucky Court retained jurisdiction over domestic issues between the parties, until November, 2010.  At that time, it ordered that the domestic relations case should be transferred to the Jefferson, Indiana, Circuit Court, which assumed jurisdiction in January, 2011.

Mother subsequently moved to Bloomington, Indiana. In May, 2011, Father petitioned the court for a custody modification and requested a hearing on the same. Neither of his pleadings showed a certificate of service to Mother upon filing. The Jefferson Circuit Court set a hearing for June 2, 2011; but the order did not state the nature of the hearing. Mother received the trial court’s order by regular mail on May 25, 2011. On May 27, 2011, Mother received a copy of Father’s petition to modify custody. On the same day, Mother filed a motion for continuance and a motion for change of venue and change of judge pursuant to Indiana Trial Rules 76 and 79.

On June 1, 2011, the trial court denied Mother’s motions without a hearing. Mother, who appeared pro se because of the difficulty in obtaining counsel for the June 2, 2011 modification hearing, renewed her requests in open court at the hearing, but the trial court again denied them. After the hearing, the trial court awarded sole physical custody to Father with Mother to receive visitation rights under the Indiana Parenting Time Guidelines.

Mother contended that the trial court erred in denying her request for automatic change of judge under Trial Rule 76.  She argued that the trial court had no discretion to deny the request and that the trial court had no jurisdiction to rule on Father’s petition for modification of custody.

Father responded that Mother’s petition was a request for change of venue under Trial Rule 76(A) and an alternate request for change of judge under the specific conditions of Trial Rule 79(C).  Father argued that Mother did not request a Trial Rule 76 automatic change of judge and that she should not be able to raise the issue for the first time on appeal. Father also maintained that Mother’s request was untimely.

The Court found that the automatic change of judge, available under Rule 76(B), was not lost by Mother’s enumeration of factors related to her request.   The Court then found that Trial Rule 76(C)(5), regarding timeliness of a 76(B) request, applies only when a hearing has been held and the trial date was set at that hearing.  Moreover, the Court stated that the three-day requirement is premised upon an oral setting of the trial date.  In the matter at hand, the trial court did not hold a hearing and set a trial date, so the limitations of Trial Rule 75(C)(5) were not applicable.  Accordingly, Mother was not required to file her motion within three days after receiving notice that a trial date had been set.  Therefore, her motion to change judge was timely

The Court concluded that the trial court should have automatically granted the request for automatic change of judge under Trial Rule 76(B). Furthermore, the trial court should not have held the modification hearing, as it was deprived of jurisdiction by the timely filing of the Trial Rule 76(B) request.

OUTCOME: Reversed and remanded with instructions that the judge grant Mother’s request for change of judge and that the procedures for the selection of a new judge be immediately implemented.

To view the text of this opinion in its entirety, click : A.T. (Mother) v. G.T. (Father)

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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