MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 29 2017, 8:02 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark Small Maggie L. Sadler
Indianapolis, Indiana Clark Quinn Moses Scott &
Grahn, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jenny Anne Lee, September 29, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A04-1609-DR-2107
v. Appeal from the Marion Superior
Court
Paul William Lee, The Honorable Timothy Oakes,
Appellee-Respondent. Judge
The Honorable Therese Hannah,
Commissioner
Trial Court Cause No.
49D02-1201-DR-209
Pyle, Judge.
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Statement of the Case
[1] Jenny Anne Lee (“Mother”) attempts to appeal the trial court’s grant of Paul
Lee’s (“Father”) motion to reconsider its order granting Mother’s change of
judge motion. However, because the trial court’s order granting Father’s
motion to reconsider was neither a final judgment nor an appealable
interlocutory order, Mother has forfeited her right to appeal. We decline to
disregard this forfeiture or to issue an advisory opinion on this premature
appeal, and we dismiss the appeal.
[2] We dismiss.
Issue
Whether Mother has forfeited her right to this appeal because the
trial court’s order granting Father’s motion to reconsider was
neither a final judgment nor an appealable interlocutory order.
Facts
[3] Mother and Father were married in August 1998. They are the parents of
daughter O.L., who was born in September 1999; son P.L., who was born in
September 2001; son Pa.L., who was born in October 2003; son M.L., who was
born in December 2005; son K.L., who was born in November 2007; and
daughter E.L., who was born in April 2010.
[4] In January 2012, Mother filed a dissolution petition. Two years later, in
January 2014, the parties entered into a mediated settlement agreement, which
the trial court approved. Pursuant to the terms of this agreement, Mother
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received sole custody of the parties’ children, who were to attend school in
Zionsville. The parties also agreed that Father would pay $525.00 per week in
child support.
[5] In September 2015, Mother filed a notice of intent to relocate the children from
Zionsville to Nineveh in Brown County on or after October 31, 2015. One
month later, in October 2015, Father filed an objection to Mother’s intent to
relocate as well as a request for an emergency temporary restraining order
hearing, wherein he moved to modify custody of the children. In November
2015, the trial court issued an order temporarily prohibiting the relocation of
the children and scheduled the matter for a hearing in December 2015.
[6] Following that hearing, the trial court issued an order granting Mother’s request
to relocate the children to Brown County. In its order, the trial court concluded
that Mother’s purchase of a home in Nineveh was an attempt to provide some
stability in her children’s lives. The trial court found “compelling Mother’s
testimony that she [was] attempting to create in Nineveh a life for the children
that she [could] afford.” (Appellee’s App. Vol. 2 at 34). The trial court further
concluded that the proposed relocation was made in good faith and for a
legitimate reason. The order also provided for the appointment of a Guardian
Ad Litem (“GAL”) and set the matter for a status hearing in June 2016 to
determine how the children were adjusting to their new home.
[7] One week after the trial court granted Mother’s request to relocate, Father filed
a motion to correct error wherein he argued that the trial court had erred in
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finding that Mother’s proposed relocation was made in good faith and for a
legitimate reason. He asked the trial court to correct its error and modify
custody of the children in his favor. After several continuances, the trial court
held a hearing on Father’s motion to correct error on July 26, 2016, and heard
evidence from both parents concerning the children’s status since their
relocation to Ninevah. At the hearing, Father orally moved for a modification
of custody, parenting time, and child support and stated that a written motion
would soon follow. The trial court did not rule on the motion to correct error
and scheduled a hearing for Father’s modification motion on August 9, 2016.
Both parents stipulated that their testimony at the July 26 hearing and the GAL
report would be included in the hearing. Father filed the written motion to
modify custody, parenting time, and child support on July 29.
[8] Less than a week before the hearing, Mother filed a motion for a continuance.
Both Father and the GAL objected to the motion, and the trial court denied it.
The morning of the hearing, Mother filed a motion for change of judge
pursuant to Indiana Trial Rule 76, which the trial court initially granted. That
same day, Father filed a motion to reconsider the order granting Mother’s
change of judge motion and a request for a ruling on his pending motion to
correct error. On August 12, 2016, the trial court issued an order (“August 12
Order”) that granted both Father’s motion to reconsider and his motion to
correct error. The trial court scheduled a hearing on September 27, 2016, to
hear evidence on Father’s motion to modify custody.
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[9] In the meantime, on September 15, 2016, Mother filed a motion asking the trial
court to certify the August 12 Order for interlocutory appeal. Mother also filed
in this Court a Notice of Appeal to initiate a direct appeal of the August 12
Order. In addition, Mother filed a motion to continue the September 27
hearing.
[10] Father responded with a motion for clarification of the August 12 Order and an
objection to Mother’s motion to continue. On September 23, the trial court
granted Mother’s motion to continue and scheduled an October 4 hearing on
the following pending motions: (1) Mother’s motion to certify the August 12
Order for interlocutory appeal; (2) Father’s motion for clarification of the
August 12 Order; and (3) Father’s motion for modification of child custody.
[11] On September 28, Mother filed another motion for a continuance as well as a
motion to stay the August 12 Order pending appellate review. Father filed an
objection to both motions. On September 30, the trial court held a hearing on
Mother’s motions to continue the hearing, to stay the proceedings pending
appeal, and to certify the interlocutory order for appeal. That same day, after
the hearing, the trial court denied all her motions.
[12] Also that day, Mother filed in this Court an emergency motion to stay the
August 12 Order and trial court action pending appellate review. Mother
specifically argued that whether the trial court properly vacated its order that
allowed Mother to relocate and whether the trial court properly denied Mother
a change of judge were important legal issues that needed to be resolved by the
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Indiana Court of Appeals. While that motion was pending in this Court, the
trial court held a hearing on Father’s petition to modify custody on October 4.
The trial court issued an order on Father’s custody modification on October 6.
Specifically, the trial court granted Father’s petition to modify the custody of
the parties’ five youngest children. However, the trial court stayed the effect of
the order because Mother had filed a direct appeal of the August 12 Order. The
following day, October 7, 2016, this Court granted Mother’s emergency motion
to stay the August 12 Order and trial court action pending appellate review.
Mother now attempts to appeal the trial court’s August 12 Order. Specifically,
she appeals the trial court’s grant of Father’s motion to reconsider its prior order
granting Mother’s change of judge motion.
Decision
[13] Mother argues that the trial court erred when it granted Father’s motion to
reconsider its prior grant of Mother’s motion to change judge. However, at the
time Mother attempted to appeal the August 12 Order, issues and motions
remained concerning the relocation and custody of the parties’ six children.
The August 12 Order therefore failed to “dispose[] of all issues as to all parties,
to the full extent of the court to dispose of the same, and put[] an end to the
particular case as to all of such parties and all of such issues.” See State ex rel.
Neal v. Hamilton Circuit Court, 248 Ind. 130, 134, 224 N.E.2d 55, 57 (1967). See
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also Ind. App. Rule 2(H).1 Because the August 12 Order did not dispose of all
issues as to all parties, and the trial court did not direct entry of judgment of
Trial Rule 54(B), the August 12 Order was not a final judgment.
[14] If an order is not a final judgment, then an appellant may appeal the order only
if it is an appealable interlocutory order. See Adoption of S.J., 967 N.E.2d 1063,
1066 (Ind. Ct. App. 2012). This Court reviews interlocutory orders under the
conditions described in Indiana Appellate Rule 14. The purpose of this rule, as
is the purpose of Trial Rule 54(B), “is to avoid piecemeal litigation and appeal
of various issues in a case and to preserve judicial economy by protecting
against the appeal of orders that are not yet final.” Paulson v. Centier Bank, 704
N.E.2d 482, 488 (Ind. Ct. App. 1998), trans. denied.
[15] Pursuant to Appellate Rule 14, there are three instances where this Court
reviews interlocutory orders. First, we review interlocutory orders when the
1
Indiana Appellate Rule 2(H) provides that a judgment is final if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule
56(C) that there is no just reason for delay and in writing expressly directs the entry of
judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under
Trial Rule 56(C) as to fewer than off the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was
timely filed under Trial Rule 59 or Criminal Rule 16; or
(5) it is otherwise deemed final by law.
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right is provided by statute. See App. R. 14(D). Second, we review
interlocutory orders when the trial court certifies the order and we accept it. See
App. R. 14(B). Lastly, we review interlocutory orders when the order is one of
the nine enumerated types that may be appealed as a “matter of right.” See
App. R. 14(A).
[16] Here, Mother has not directed us to a statute that provides her a right to review,
and we will not undertake her burden of searching the Indiana Code to
establish that such a statute exists. See Young v. Estate of Sweeney, 808 N.E.2d
1217, 1220 (Ind. Ct. App. 2004). Thus, the August 12 Order is not an
appealable interlocutory order under App. R. 14(D).
[17] Acknowledging that the August 12 Order was a permissive interlocutory order
pursuant to Appellate Rule 14(B), Mother asked the trial court to certify the
order for interlocutory appeal. However, the trial court had the discretion to
deny that motion and did so. Accordingly, the August 12 Order is not
appealable under App. R. 14(B).
[18] Lastly, Mother has not mentioned any of the nine grounds listed in Rule 14(A)
for appeals as a matter of right, and a comparison of the appealed order and the
enumerated list reveals no basis for an appeal of right. Because Mother’s
appeal is not properly before this Court pursuant to Appellate Rule 14, Mother
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has forfeited her appeal.2 Accordingly, we dismiss it. See Young, 808 N.E.2d at
1220.
[19] Dismissed.
[20] Brown, J., concurs.
May, J., dissents with opinion.
2
Previous cases have discussed this Court’s lack of jurisdiction over premature or interlocutory orders. See
Young, 808 N.E.2d at 1220. However, recently in In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 578
(Ind. 2017), the Indiana Supreme Court discussed the distinction between “jurisdiction” and “forfeiture” and
explained that an appellant’s untimely notice of appeal results in the forfeiture of an appellant’s right to
appeal, not the divesture of an appellate court’s jurisdiction. Id. at 579. The D.J. Court further explained that
when an appellant has forfeited his right to appeal, our appellate courts retain “jurisdiction to disregard the
forfeiture and resolve the merits” of the untimely appeal. Id. The Court, however, emphasized that “it is
never error for an appellate court to dismiss an untimely appeal[.]” Id.
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ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark Small Maggie L. Sadler
Indianapolis, Indiana Clark Quinn Moses Scott &
Grahn, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jenny Anne Lee, Court of Appeals Case No.
49A04-1609-DR-2107
Appellant-Petitioner,
v.
Paul William Lee,
Appellee-Respondent.
May, Judge, Dissenting
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[21] I agree with the majority that Mother’s disregard for proper procedure has
resulted in forfeiture of her appeal. However, as noted in the majority opinion,
our court may retain “jurisdiction to disregard the forfeiture and resolve the
merits” of an untimely appeal. In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d
574, 579 (Ind. 2017). Due to the contentious nature of the matter before us and
in the interest of judicial economy, I believe we should address the issue
whether the trial court erred as a matter of law when it reversed its decision to
grant Mother’s motion for change of judge. Therefore, I respectfully dissent.
[22] The issue here is whether Mother’s motion for change of judge was timely.
Thus, it “presents a purely legal question involving construction of the Indiana
Trial Rules that we review de novo.” Johnson Cty. Rural Elec. Membership Corp.
v. S. Cent. Indiana Rural Elec. Membership Corp., 883 N.E.2d 141, 143 (Ind. Ct.
App. 2008). Regarding a motion for a change of judge, Indiana Trial Rule
76(B) provides, in relevant part:
In civil actions, where a change may be taken from the judge,
such change shall be granted upon the filing of an unverified
application or motion without specifically stating the ground
therefor by a party or his attorney. Provided, however, a party
shall be entitled to only one [1] change from the judge. After a
final decree is entered in a dissolution of marriage case or
paternity case, a party may take only one change of judge in
connection with petitions to modify that decree, regardless of the
number of times new petitions are filed.
[23] After initially granting Mother’s request for a new judge, the trial court issued
an order reconsidering its decision and vacated its order granting Mother’s
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request for a new judge. The trial court relied on Indiana Trial Rule 76(C)(5),
which provides:
[W]here a party has appeared at or received advance notice of a
hearing prior to the expiration of the date within which a party
may ask for a change of judge or county, and also where at said
hearing a trial date is set which setting is promptly entered on the
Chronological Case Summary, a party shall be deemed to have
waived a request for change of judge or county unless within
three days of the oral setting the party files a written objection to
the trial setting and a written motion for change of judge or
county[.]
[24] The trial court found, in support of its decision to deny:
16. The Court FINDS that Mother, by counsel, appeared at the
July 26, 2016, hearing when the Court set a hearing on Father’s
motion for modification of custody for August 9, 2016. Pursuant
to the trial rule, Mother had three days after the oral setting of the
hearing to move for change of judge.
17. Mother failed to move for change of judge until August 9,
2016, rendering her motion untimely. Since Mother’s motion for
change of judge made pursuant to T.R. 76 was untimely, it
cannot deprive this court of jurisdiction to rule on pending
matters.
(Appellant’s App. Vol. II at 106-7) (emphasis in original).
[25] Mother attempts to parse the meanings of “notice” and “hearing.” She
contends because a portion of the proceedings before the court at the time the
court scheduled the August 9, 2016, hearing on Father’s presumptive motion to
modify custody, parenting time, and child support was off-the-record, that
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proceeding was not a “hearing.” However, Father points to at least two places
in the record - the court’s order and Mother’s motion - that reference the July
26, 2016, proceeding as a “hearing.” (See Appellee’s App. Vol. 2 at 53, 62.)
[26] Further, Mother claims she was not put on “notice” of the August 9 hearing
date by the trial court’s oral statement, “Father moves on the record for a
motion to modify custody, parenting time and child support. The court sets this
matter for hearing on 8-9-16 at 9:00 a.m. The oral motion to be followed up
with a written filing.” (Tr. Vol. II at 165.) The record shows Mother knew
there was a hearing scheduled on Father’s petition to modify custody, parenting
time, and child support. Her counsel was at the July 26, 2016, hearing. Mother
filed a motion to continue the August 9 hearing on August 4, 2016. When she
was unsuccessful, she filed a motion for change of judge on August 9. Mother
has not directed this court to any case law to suggest the actions taken in this
case do not constitute sufficient “notice.”
[27] I respectfully dissent to address the issues of this case on the merits and would
affirm the decision of the trial court and not dismiss the appeal outright.
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