Teresa Fry n/k/a Teresa Dolan v. Michael Fry
2014 Ind. App. LEXIS 163
| Ind. Ct. App. | 2014Background
- Michael and Teresa divorced in 2005; their dissolution decree incorporated a child custody agreement giving them joint legal custody of their child J.F., Teresa primary physical custody, and authorizing Michael to include Teresa’s daughter K.D. (born before the marriage) in parenting time at his option.
- For years Michael routinely exercised parenting time with K.D.; K.D. considered Michael a father-figure and called him “Dad.”
- In June 2012 Michael filed an emergency petition to modify custody of both children, alleging Teresa’s Huntington’s disease left her unable to safely care for the children and requesting immediate primary custody and supervised visitation for Teresa.
- At a July 2012 hearing the court received medical evidence, testimony, and an in camera interview of K.D., found an emergency and Teresa incapacitated, and awarded Michael primary physical custody of both children while ordering supervised visitation for Teresa.
- Teresa later sought clarification and enforcement of supervised visitation and then moved under Trial Rule 60(B) to void the custody orders as to K.D., arguing the court lacked jurisdiction over custody of a child not of the marriage; the trial court denied relief and reaffirmed its orders.
- Teresa appealed only the denial of her Trial Rule 60(B) motion as to K.D.; the Court of Appeals affirmed, holding the court had authority to consider Michael’s emergency petition and committed no legal error.
Issues
| Issue | Fry (Appellant) Argument | Fry (Appellee) / Michael Argument | Held |
|---|---|---|---|
| Whether the trial court lacked jurisdiction to modify custody of K.D., a child not born of the marriage | Trial court lacked jurisdiction over custody of a non‑marital child and so the custody orders concerning K.D. are void | Trial court had jurisdiction to hear an emergency custody petition under statutory authority and Michael acted as a de facto custodian with standing | Court held the judgment was not void; trial court had subject‑matter and personal jurisdiction and could consider emergency custody for K.D. |
| Whether Michael could seek emergency placement/custody of K.D. | N/A (challenge focused on jurisdiction) | Michael could invoke emergency placement procedures and had legal right to seek immediate custody pending final determination | Court held Michael’s petition fit the emergency‑placement framework and he had legal authority to seek relief |
| Whether Michael’s status justified custody consideration for K.D. | N/A | Michael functioned as a de facto custodian and maintained a longstanding parental relationship with K.D. | Court held Michael could be treated as a de facto custodian and thus be considered in custody determinations |
| Whether Teresa’s failure to timely appeal or her subsequent enforcement motions estopped her from voiding the order | Teresa argued the order was void regardless of her conduct | Michael pointed to Teresa’s post‑order acquiescence and enforcement motions as waiver/forfeiture of relief on jurisdictional grounds | Court noted Teresa’s acquiescence and enforcement actions and treated the challenge as nonjurisdictional error; affirmed the orders |
Key Cases Cited
- Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299 (Ind. Ct. App. 2012) (void judgment occurs where court lacks subject‑matter or personal jurisdiction)
- K.S. v. State, 849 N.E.2d 538 (Ind. 2006) (distinguishes true jurisdictional defects from legal error; courts possess subject‑matter and personal jurisdiction analysis)
- Mishler v. County of Elkhart, 544 N.E.2d 149 (Ind. 1989) (presumption that courts of general jurisdiction have subject‑matter jurisdiction)
- Kondamuri v. Kondamuri, 799 N.E.2d 1153 (Ind. Ct. App. 2003) (trial courts have authority over dissolution and incidental child custody matters)
- D.L.D. v. L.D., 911 N.E.2d 675 (Ind. Ct. App. 2009) (standard of review for Trial Rule 60(B) relief; void‑judgment claims present no discretion)
- In re Custody of G.J., 796 N.E.2d 756 (Ind. Ct. App. 2003) (custody in dissolution can be awarded to natural/adoptive parents or de facto custodians)
- Nunn v. Nunn, 791 N.E.2d 779 (Ind. Ct. App. 2003) (trial court may consider custody of a child not born of the marriage where third‑party custodial claims exist)