Shelly Bailey v. Lance Bailey
2014 Ind. App. LEXIS 168
Ind. Ct. App.2014Background
- Parents divorced in 2010; final decree awarded joint legal custody and gave Mother primary physical custody; Father had guideline visitation plus one extra weeknight.
- Repeated disputes led to mediation (May 2012) and multiple petitions: Father sought custody modification (denied 2012), later filed contempt; Mother filed to restrict visitation and also withheld visitation unilaterally in Dec. 2012.
- The trial court held an evidentiary hearing on contempt and visitation issues; Father requested makeup visitation but never asked for a custody modification or joint physical custody.
- At the hearing’s close counsel for Mother acknowledged the court’s authority to enter a Parallel Parenting Order; the court sua sponte ordered joint physical and legal custody with alternating-week physical custody and parallel parenting provisions (May 23, 2013).
- Mother moved to correct error arguing the court lacked authority to modify custody when neither party requested such relief; the trial court denied the motion and Mother appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by sua sponte modifying physical custody when no party requested modification | Mother: Court lacked authority to modify custody absent a petition, notice, and proper adjudication on best interests and changed circumstances | Father: Mother had notice and consent to a Parallel Parenting Order; increased parenting time equated to consideration of custody change | Reversed — court abused discretion by sua sponte changing physical custody without a petition or proper findings on statutory factors |
| Whether Mother’s agreement to allow a Parallel Parenting Order amounted to consent to change physical custody | Mother: Agreement did not concede joint physical custody; Parallel Parenting is distinct and normally does not alter time allocation | Father: Mother’s counsel agreed the court could enter a Parallel Parenting Order, implying consent | Held for Mother — agreement to Parallel Parenting did not authorize changing custody; the provisions ordinarily do not alter primary physical custody |
| Whether the trial court satisfied statutory requirements for modifying custody (best interests and substantial change) | Mother: No findings or evidence regarding substantial change or best interests; she had no opportunity to litigate those issues | Father: Increase in Father’s parenting time and Parallel Parenting justification addressed children’s best interests | Held for Mother — order lacked required consideration/findings of substantial change and best interests; trial court relieved Father of burden to prove modification was warranted |
| Whether portions of the Parallel Parenting Order may remain while restoring Mother’s primary custody | Mother: Custody modification must be reversed but parallel parenting can remain if adjusted to reflect Mother’s primary custody | Father: Parallel parenting intended to limit contact and could affect parenting time allocation | Held: Parallel Parenting provisions may remain if revised to preserve Mother’s primary physical custody and Father’s scheduled visitation |
Key Cases Cited
- Wilson v. Myers, 997 N.E.2d 338 (Ind. 2013) (standards for custody modification and procedural requirements; reversal for procedural abuse)
- In re Marriage of Henderson, 453 N.E.2d 310 (Ind. Ct. App. 1983) (trial courts may not sua sponte change custody; petition and hearing required)
- State ex rel. Davis v. Achor, 75 N.E.2d 154 (Ind. 1947) (opportunity to be heard required before depriving custody)
- K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453 (Ind. 2009) (deference to trial courts in family law matters)
- Alexander v. Cole, 697 N.E.2d 80 (Ind. Ct. App. 1998) (opportunity to be heard essential before custody deprivation)
- Meneou v. Meneou, 503 N.E.2d 902 (Ind. Ct. App. 1987) (modification for other parent possible if clear desire for custody shown at hearing)
- Glover v. Torrence, 723 N.E.2d 924 (Ind. Ct. App. 2000) (T.R. 15(B) — issues may be tried by consent but some notice is required)
- Julie C. v. Andrew C., 924 N.E.2d 1249 (Ind. Ct. App. 2010) (substantial increase in parenting time can amount to de facto custody modification)
- O’Campo v. O’Campo, 597 N.E.2d 1314 (Ind. Ct. App. 1992) (trial court erred by sua sponte modifying custody where issue was not raised or litigated)