Family Law Case Review: Father Denied Special Judge

Family Law Case Review
Case: William A. Asher v. Stephanie J. Coomler
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Father was denied his right to have a special judge preside over a post-decree dispute where, after filing a timely motion for change of venue from the judge, and selecting a special judge pursuant to Trial Rule 79, the matter was instead heard by a magistrate over Father’s objection.

FACTS AND PROCEDURAL HISTORY:
Father and Mother divorced, with two children, in 2001 in the Marion County Superior Court. In 2012, Mother filed a petition to modify the Decree to allocate the children’s college expenses. In response, Father filed a Trial Rule 76 motion for change of venue from the judge. Father also filed his own petition to modify child support, seeking a change in his child support and uninsured medical expense obligations.

Father’s motion for change of venue from the judge was granted, and a panel of Marion County Superior Court judges was named. After striking by each party, Hon. S.K. Reid remained and the case was transferred to Judge Reid’s court. Several weeks later, an order to appear was issued by the Court, signed by Magistrate Kimberly Mattingly.

In December 2012, the parties appeared for a hearing on their respective motions. Magistrate Mattingly presided. Father requested a continuance, citing a belief that the case needed to be heard by the special judge. Magistrate Mattingly denied the motion. Evidence was presented, but, prior to completion of the hearing, Father’s counsel again requested a continuance, which was granted.

The parties and counsel reconvened for another hearing the following month, with Magistrate Mattingly again presiding. Father did not object this time, and the hearing was concluded. Several days later, the trial court’s order was issued, signed by both Magistrate Mattingly, recommending the order for approval, and Marion County Superior Court Judge James Osborn, approving the order. The order denied Father’s petition to modify child support, and allocated the children’s college expenses 78% to Father. Father appealed.

The Court of Appeals reviewed the mechanics of Trial Rules 76 and 79. The Court noted that it was undisputed that Judge Reid was the duly appointed special judge and possessed jurisdiction over the case. Ind. Code 33-33-49-32(c) provides a mechanism for requesting that a Marion County Superior Court matter that has been assigned to a magistrate be heard by the elected judge. However, the Court of Appeals concluded that statute to be inapplicable to these circumstances because Judge Reid had assumed jurisdiction by way of Trial Rule 79. Trial Rule 79 permits a special judge to assign a case only to “a judge pro tempore, temporary judge, or senior judge of the court where the case is pending…” However, Magistrate Mattingly was not within the class of these specified judicial officers.

The Court also concluded that Father’s objection to Magistrate Mattingly presiding at the initial hearing was sufficient to preserve Father’s objection, and that Father’s lack of a second objection at the second hearing was not consequential.

The case was reversed and remanded with instructions to permit the parties to select a successor special judge in accordance with Trial Rule 79.

To view the text of this opinion in its entirety, click here: William A. Asher v. Stephanie J. Coomler

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The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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