960 N.E.2d 878
Ind. Ct. App.2012Background
- Mother appeals denial of automatic change of judge in a custody modification after Jefferson Circuit Court proceedings.
- Parents divorced December 28, 2009; Trimble County, Kentucky family court awarded joint custody with Father as primary custodian.
- Parties moved to Madison/Bloomington, Indiana; 2010 Jefferson Superior Court no-contact order based on domestic violence allegations; Trimble Family Court retained domestic relations jurisdiction.
- Trimble Family Court restored joint custody in October 2010; transferred the domestic relations case to Jefferson Circuit Court, which assumed jurisdiction January 11, 2011.
- May 4, 2011 Father filed petition to modify custody seeking sole physical custody; Mother filed, among other things, motions for change of venue and change of judge; no service on Mother.
- June 2, 2011 modification hearing held; trial court denied the motions and awarded Father sole physical custody with visitation to Mother.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying automatic change of judge under Trial Rule 76(B). | Mother argued Rule 76(B) obligated automatic change. | Father argued rule not triggered and issue untimely. | Court held error; automatic change should have been granted. |
Key Cases Cited
- Bedree v. DeGroote, 799 N.E.2d 1167 (Ind. Ct. App. 2003) (change of judge divests trial court of jurisdiction unless granted or for emergencies)
- McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008) (timeliness of change of judge under Trial Rule 76(C)(5) discussed; three-day rule depends on hearing and oral setting)
- Carter-McMahon v. McMahon, 815 N.E.2d 170 (Ind. Ct. App. 2004) (statutory construction principle applied to trial rules)
- Gray v. D&G, Inc., 938 N.E.2d 256 (Ind. Ct. App. 2010) (interpretation of trial rules; every word given effect)