Jason Wilson v. Kelly (Wilson) Myers, 997 N.E.2d 338

Background

Jason Wilson and Kelly Myers divorced in 2006; Wilson was awarded physical custody of two children, A.W. and B.W.
Myers moved to modify custody (initially for A.W., later for both children); the case was referred to the Domestic Relations Counseling Bureau (DRCB) and counsel sessions occurred.
The DRCB director informed the court Wilson had secretly recorded counseling sessions; the court ordered Wilson to produce the tapes and set a hearing for March 19, 2012.
At the March 19 hearing the judge announced she would grant Myers’s amended motion to modify custody, but no witnesses were sworn, no evidence formally admitted, and no in-camera interview of the children was conducted despite Wilson’s request.
The court entered an order awarding Myers custody effective immediately; Wilson appealed arguing the trial court abused its discretion by modifying custody without an evidentiary hearing and without required findings.
The Indiana Supreme Court vacated the trial court’s order and remanded for a proper evidentiary hearing, but ordered the current living arrangement (children living with Myers and attending Michigan schools) to remain in place pending further proceedings to minimize disruption.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court may modify custody without an evidentiary hearing	Myers: summary disposition acceptable; parties and salient witnesses present and discussed evidence	Wilson: modification requires evidentiary hearing, sworn testimony, and opportunity for cross-examination	Trial court abused discretion by granting modification without an evidentiary hearing or sworn testimony; remand for proper hearing
Whether order sufficiently addressed statutory best-interest factors and substantial-change requirement	Myers: record included counseling material and discussion sufficient to support decision	Wilson: order contained no findings on best interests or substantial change in statutory factors	Court found no mention or inferable consideration of statutory factors; process deficient
Whether Wilson waived rights by consenting to counselor communications and not insisting on formalities	Myers: Wilson signed release and did not demand sworn testimony, so he waived objections	Wilson: even if parents waived formalities, children had no separate representative; waiver cannot cure defective process affecting children	Waiver did not cure procedural defects, especially because children were not separately represented and no GAL participation was in the record at hearing
Interim relief/status quo pending remand	Myers: current arrangement should stand if court’s order in effect	Wilson: trial court’s order invalid—children should return to prior custodial arrangement	Court vacated order but preserved the de facto status quo (children living with Myers) to avoid further disruption until trial court reevaluates on remand

Key Cases Cited

Kirk v. Kirk, 770 N.E.2d 304 (Ind. 2002) (party seeking custody modification bears burden and must show substantial change in statutory factors)
K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453 (Ind. 2009) (standard of review for custody modifications—abuse of discretion with deference to trial courts)
Wilson v. Myers, 979 N.E.2d 1072 (Ind. Ct. App. 2012) (court of appeals memorandum decision that was later vacated on transfer)