In re the Paternity of Connor Ricciardi Korey Ricciardi v. Christina Feiock (mem. dec.)
49A05-1701-JP-61
| Ind. Ct. App. | Jul 14, 2017Background
- Child C.R., born Oct. 2006; father (Korey Ricciardi) obtained sole legal and physical custody in May 2015.
- Mother (Christina Feiock) filed an emergency motion to modify custody in June 2016; a hearing was set for Oct. 25, 2016.
- On Oct. 20, 2016, Father filed an emergency petition to modify Mother's parenting time, alleging Mother's conduct harmed the child and sought supervised parenting time.
- Father submitted a proposed order to set the parenting-time hearing for the same Oct. 25 hearing; the trial court did not sign it before the hearing.
- At the Oct. 25 hearing on Mother's motion, the court asked Father if there was anything else to be heard; Father said no, apparently referring to Mother's motion; the court later denied Father’s petition as moot without a separate hearing.
- Father appealed; this court granted belated appeal and held Mother did not file an appellee brief, so a prima facie error standard could apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying Father’s petition to modify parenting time without a hearing | Ricciardi: denial was improper because he did not withdraw petition and had alleged serious conduct affecting child’s best interests that required a hearing | Trial court/Respondent: petition was moot because Father was asked on the record if anything else was to be heard and he answered no | Court reversed: denial was an abuse of discretion; Father established prima facie error and is entitled to a hearing; case remanded |
Key Cases Cited
- Perkinson v. Perkinson, 989 N.E.2d 758 (Ind. 2013) (parenting-time decisions reviewed for abuse of discretion; best interests of the child foremost)
- Russell v. Russell, 682 N.E.2d 513 (Ind. 1997) (abuse of discretion standard described)
- In re Paternity of G.R.G., 829 N.E.2d 114 (Ind. Ct. App. 2005) (rational-basis review for trial court determinations)
- Zoller v. Zoller, 858 N.E.2d 124 (Ind. Ct. App. 2006) (less stringent review when appellee fails to file brief; prima facie error standard)
- Murfitt v. Murfitt, 809 N.E.2d 332 (Ind. Ct. App. 2004) (appellant bears burden to show reversible error when appellee does not file brief)