Jessica Robertson v. Brian Robertson
2016 Ind. App. LEXIS 266
| Ind. Ct. App. | 2016Background
- Parents divorced in 2010; Mother was awarded primary custody of two children born 2006 and 2007.
- Mother married Step‑father in Oct. 2014; Father petitioned to modify custody in Feb. 2015 alleging Step‑father’s substance misuse, criminal history, and that Mother placed her relationship ahead of the children.
- A GAL investigated and recommended custody to Father, citing Step‑father’s conduct, criminal record, unemployment, and attempts to isolate the family.
- Trial court held a two‑day evidentiary hearing (Aug. 2015), interviewed one child in chambers, and entered an immediate provisional emergency custody order placing the children with Father; final findings were entered Jan. 19, 2016.
- Mother filed an early Notice of Appeal after provisional orders; appellate motions panel ordered the trial court to issue final findings and denied Father’s motions to dismiss; the Court of Appeals considered whether to reach the merits.
- Trial court found a substantial change in circumstances (children withdrawn, reduced contact with family/friends, Step‑father’s behavior and criminal history) and held modification to Father served the children’s best interests.
Issues
| Issue | Robertson (Mother) Argument | Robertson (Father) Argument | Held |
|---|---|---|---|
| Jurisdiction — whether appeal is reviewable despite procedural defects | Mother argues her timely attempt to appeal and the constitutional parent‑child interest warrant review; motions panel accepted her Notice | Father argues Mother’s initial appeal targeted interlocutory provisional orders and she failed to file a new Notice after final order, depriving appellate jurisdiction | Court followed In re Adoption of O.R.: appellate rules and Mother’s attempt to perfect appeal, plus fundamental parental interests, permit review on the merits |
| Custody modification — whether trial court abused discretion in awarding custody to Father | Mother contends there was no substantial change in circumstances to justify modification | Father and GAL contend Step‑father’s substance use, criminal history, risky conduct, isolation of children, and decline in children’s wellbeing are substantial changes; modification serves best interests | Court affirmed: evidence supported substantial change and best‑interest finding; trial court did not abuse its discretion |
Key Cases Cited
- In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) (untimely notice may forfeit appeal but appellate court may restore appeal in extraordinary circumstances, especially in parental‑custody context)
- Kondamuri v. Kondamuri, 852 N.E.2d 939 (Ind. Ct. App. 2006) (deference to trial court on custody findings and witness credibility)
- Maddux v. Maddux, 40 N.E.3d 971 (Ind. Ct. App. 2015) (two‑tier review where trial court issues findings: review findings for evidence, legal conclusions de novo)
- Francies v. Francies, 759 N.E.2d 1106 (Ind. Ct. App. 2001) (standard for modification and effect of final custody determinations)
- Estate of Mayer v. Lax, Inc., 998 N.E.2d 238 (Ind. Ct. App. 2013) (reluctance to overturn motions‑panel procedural rulings absent clear error)
- Mosser v. Mosser, 729 N.E.2d 197 (Ind. Ct. App. 2000) (provisional orders merge into and are extinguished by final custody orders)