960 N.E.2d 878
Ind. Ct. App.2012Background
- Mother and Father divorced in Kentucky; Trimble Family Court awarded joint custody with Father as primary custodian.
- Parties moved to Indiana; a no-contact order for domestic violence led to temporary custody to Mother and later reinstated joint custody.
- The Trimble court transferred the domestic relations case to Jefferson Circuit Court, which assumed jurisdiction in January 2011.
- In May 2011 Father petitioned to modify custody; Mother filed May 27, 2011 motion seeking change of venue and change of judge under Rules 76/79.
- Trial court denied the motions without a hearing; after hearing, court awarded sole physical custody to Father.
- On appeal, Mother argues automatic change of judge should have been granted; the court reverses and remands with instructions to grant change of judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying automatic change of judge. | Mother argues Rule 76(B) automatic change of judge cannot be denied and jurisdiction was divested. | Father contends Rule 76(C) timeliness/venue issues apply and the change was not automatic. | Trial Rule 76(B) automatic change of judge should have been granted; remanded. |
Key Cases Cited
- Bedree v. DeGroote, 799 N.E.2d 1167 (Ind.Ct.App.2003) (change from judge divests trial court; court may only grant change or handle emergencies)
- McClure v. Cooper, 893 N.E.2d 337 (Ind.Ct.App.2008) (timeliness of change-of-judge depends on context; three-day rule debated)
- Multivest Prop. v. Hughes, 671 N.E.2d 199 (Ind.Ct.App.1996) (speedy, informal nature of small claims affects procedural rules)
- Gray v. D & G, Inc., 938 N.E.2d 256 (Ind.Ct.App.2010) (rules of statutory construction applied to trial rules)