100 N.E.3d 285
Ind. Ct. App.2018Background
- Mother (Michele Bessette) and Father (Bradley Turflinger) share custody of child S.R.W.; parenting time governed by distance-based guidelines; disputes produced multiple contempt findings.
- Trial court found Mother in contempt multiple times (2014, 2015) and imposed suspended and an executed 30-day jail sentence plus $5,000 attorney-fee condition.
- Mother appealed; this court vacated the executed 30-day incarceration as punitive, affirmed two 30-day suspended sanctions but instructed the trial court to remove “strict/strictly” and condition execution on willful noncompliance.
- On remand Father filed motions (including to reinstate the jail sentence); Mother filed a motion for change of judge under Indiana Trial Rule 76(C)(3).
- Trial court denied the change-of-judge motion, amended contempt purge language to comply with the appellate instruction, and dismissed Father’s motion to reinstate the voided executed sentence.
- Mother appealed the denial of the change-of-judge motion; Father contended the appeal was an improper interlocutory appeal.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether Mother was entitled to a change of judge under Trial Rule 76(C)(3) after appellate remand | The Court of Appeals’ remand required the trial court to reconsider issues and possibly hear new evidence, triggering the third change-of-judge right under 76(C)(3) | The appellate remand only required the trial court to revise its order per instructions (no new trial or reconsideration of earlier-evidentiary issues), so 76(C)(3) does not apply | Trial court properly denied the motion; 76(C)(3) not triggered because no new trial or requirement to receive new evidence on issues previously heard |
| Whether Mother’s appeal qualifies as an interlocutory appeal of right under App. R. 14(A)(1) because of the $5,000 payment order | Mother argued appeal is proper under Rule 14(A)(1) as the order required payment of money | Father argued the appeal is improper; trial court’s order merely restated an earlier fee award that Mother previously appealed but did not contest | Court questioned propriety of interlocutory appeal; noted Mother did not raise arguments about the fee order and had waived the issue by not raising it on the earlier appeal; appellate jurisdiction argument was therefore unavailing |
Key Cases Cited
- In re V.A., 10 N.E.3d 61 (Ind. Ct. App. 2014) (discusses change-of-judge rights in paternity cases and timing rules)
- Ball State Univ. v. Irons, 27 N.E.3d 717 (Ind. 2015) (explains appellate jurisdiction over interlocutory appeals under App. R. 14)
- Tom-Wat, Inc. v. Fink, 741 N.E.2d 343 (Ind. 2001) (interlocutory appeal raises every issue presented by the order)
- Ferguson v. Estate of Ferguson, 40 N.E.3d 881 (Ind. Ct. App. 2015) (purpose of interlocutory appeals for payment of money is to protect parties compelled to part with funds during litigation)
- Citizens Action Coal. of Indiana, Inc. v. N. Indiana Pub. Serv. Co., 582 N.E.2d 387 (Ind. Ct. App. 1991) (issues available on a first appeal but not presented are waived)