MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Nov 16 2017, 6:22 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jill A. Gonzalez Ryan H. Cassman
Muncie, Indiana Brandi A. Gibson
Coots, Henke & Wheeler, P.C.
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: Adoption of R.J.B. and November 16, 2017
S.B.B., Court of Appeals Case No.
29A02-1705-AD-1123
C.B.,
Appeal from the Hamilton
Appellant-Respondent, Superior Court
v. The Honorable Steven R. Nation,
Judge
Z.C., Trial Court Cause No.
29D01-1602-AD-191
Appellee-Petitioner.
Bradford, Judge.
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Case Summary
[1] Appellee-Petitioner Z.C. (“Stepfather”) is married to M.C. (“Mother”). In
early 2016, he petitioned to adopt her children R.J.B. and S.B.B. in Hamilton
County, Indiana. Appellant-Respondent C.B. (“Father”), the biological father
of the children, contested the adoption. Approximately two months later,
Father also filed an objection to venue in Hamilton County. The trial court
denied Father’s objection.
[2] Father argues that the trial court erred in denying his objection to venue in
Hamilton County. Because Father did not raise the claim before contesting the
adoption and it was not raised as an affirmative defense, the issue is waived.
Consequently, we affirm the judgment of the trial court.
Facts and Procedural History
[3] On February 10, 2016, Stepfather and Mother filed a petition for adoption and
notice of adoption in Hamilton County. Father received notice of the adoption
petition on February 17, 2016. On March 4, 2016, Father contested adoption in
Hamilton County. On May 2, 2016, Father filed his objection to venue in
Hamilton County. In his motion, Father alleged that Hancock County was the
proper venue for the adoption.
[4] On June 8, 2016, the trial court issued its order denying Father’s objection to
venue in Hamilton County. In the months that followed, the trial court also
denied two motions to reconsider.
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[5] On February 2, 2017, the trial court held a hearing on the contested adoption.
On March 8, 2017, the trial court issued its finding of fact, conclusions of law,
and judgment. Among other things, the trial court granted the adoption
petition.
Discussion and Decision
[6] The only issue Father raises on appeal is whether the trial court erred when it
denied Father’s objection to venue in Hamilton County. This court reviews the
“grant or denial of a Trial Rule 12(B)(3) motion based upon improper venue
under Trial Rule 75 for an abuse of discretion.” Shanklin v. Shireman, 659
N.E.2d 640, 642 (Ind. Ct. App. 1995). An abuse of discretion may occur when
the trial court’s decision is “clearly against the logic and effect of the facts and
circumstances before the court, or if the trial court has misinterpreted the law.”
McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993).
[7] “The question of improper venue must be raised by motion or by affirmative
defense. If made by motion, it must be made prior to the filing of a pleading. If
not, it must be raised as an affirmative defense. If not so raised, the issue is
waived.” Sanson v. Sanson, 466 N.E.2d 770, 773 (Ind. Ct. App. 1984). Father
filed no motion to dismiss on those grounds prior to filing his motion to contest
adoption, and his motion contained no affirmative defense alleging improper
venue. Consequently, Father has waived the claim.
[8] We affirm the trial court’s judgment.
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May, J., and Barnes, J., concur.
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