72 N.E.3d 996
Ind. Ct. App.2017Background
- Grandmother (C.H.) filed an ex parte petition for a protective order on behalf of her grandson (H.L.) after an April 2015 altercation between Grandmother and Mother (A.R.). The petition listed the child’s residence as Grandmother’s and omitted that Mother had court-ordered custody from a prior Grant County paternity case.
- An ex parte protective order issued and Grandmother kept the child in her care; DCS investigated but did not file CHINS or remove the child from Mother.
- Grandmother later filed an emergency guardianship petition; the guardianship was dismissed because the Grant County paternity court had custody jurisdiction. Grandmother nevertheless continued to rely on the ex parte protective order and did not return the child.
- Mother challenged the protective order, obtained dismissal of the ex parte order at a February 10, 2016 hearing, and sought attorney fees. The trial court found Grandmother lacked standing under the CPOA to file on behalf of the child and dismissed the petition.
- The trial court also found Grandmother litigated in bad faith (omitting material custody/jurisdiction information, continuing to deprive Mother of custody) and awarded Mother $5,323 in attorney fees under the General Recovery Rule (I.C. § 34-52-1-1).
Issues
| Issue | Grandmother's Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether Grandmother had standing under the CPOA to file a protective order on behalf of the child | Grandmother argued “another representative” in I.C. § 34-26-5-2(b) includes her as the child’s grandmother and eyewitness | Mother argued only a parent, guardian, or legal representative may file; Grandmother was not parent/guardian/legal rep and misrepresented the child’s residence | Court held Grandmother lacked standing; “another representative” reasonably read as a legal representative and not satisfied by mere grandparent status |
| Whether the trial court erred in dismissing the ex parte protective order | Grandmother argued dismissal incorrectly applied Title 34 definition of “representative” and was improper | Mother argued the petition misstated facts and circumvented custody proceedings; dismissal appropriate | Court affirmed dismissal; using Title 34 definitions and noscitur a sociis was permissible to interpret “representative” |
| Whether the trial court properly awarded attorney fees under the General Recovery Rule | Grandmother contended omissions on the petition did not prove bad faith and findings insufficient to support fees | Mother argued Grandmother acted in bad faith (surreptitiously obtained ex parte order, withheld custody/jurisdiction facts, deprived Mother of custody) | Court affirmed award: findings supported bad faith and fees under I.C. § 34-52-1-1 |
| Whether the amount of fees awarded was erroneous | Grandmother argued the fee amount was not properly supported | Mother presented receipts and requested fees; Grandmother did not object at hearing | Court found fee amount acceptable; any challenge to amount waived by Grandmother at hearing |
Key Cases Cited
- J.D.M. v. State, 68 N.E.3d 1073 (Ind. 2017) (statutory interpretation is a pure question of law reviewed de novo)
- ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192 (Ind. 2016) (use of noscitur a sociis and interpreting statutory words in light of associated terms)
- Dunno v. Rasmussen, 980 N.E.2d 846 (Ind. Ct. App. 2012) (explaining attorney-fee allocation principles and review standards for awards under General Recovery Rule)
- Purcell v. Old Nat. Bank, 972 N.E.2d 835 (Ind. 2012) (standards for reviewing findings and legal conclusions when awarding fees under I.C. § 34-52-1-1)
- Marion Cty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213 (Ind. 2012) (two-tier review for Trial Rule 52(A) findings: factual findings for clear error, legal conclusions de novo)