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Fry v. Fry

Court of Appeals of Indiana

April 17, 2014

TERESA FRY n/k/a TERESA DOLAN, Appellant-Respondent,
v.
MICHAEL FRY, Appellee-Petitioner,

Page 210

APPEAL FROM THE PORTER SUPERIOR COURT. The Honorable John Shanahan, Special Judge. Cause No. 64D02-0308-DR-6728.

ATTORNEY FOR APPELLANT: KRISTEN L. SCHEUERMAN, Valparaiso, Indiana.

ATTORNEY FOR APPELLEE: DAVID E. BAUM, David E. Baum Law Office, P.C., Chesterton, Indiana.

ROBB, Judge. BARNES, J., and BROWN, J., concur.

OPINION

Page 211

ROBB, Judge

Case Summary and Issue

When Michael and Teresa Fry divorced in 2005, they agreed regarding child custody, parenting time, and support for their child, J.F. In addition, they agreed tat Michael could exercise parenting time with respect to Teresa's prior-born daughter, K.D., at his option. In 2012, Michael filed an emergency petition for modification of custody with respect to both children, alleging that Teresa suffers from a degenerative illness that renders her unable to adequately care for them. The trial court granted the petition, ordering that Michael have primary physical custody of both children and Teresa have supervised visitation. Teresa later filed a Trial Rule 60(B) motion for relief from judgment, seeking to void the order modifying custody as to K.D. The trial court denied the motion for relief and reaffirmed its previous orders. Teresa appeals the trial court's denial of her motion for relief as to K.D. only, raising the sole issue of whether the trial court had jurisdiction in this post-dissolution matter to determine custody of K.D., who was not a child of the marriage. Concluding the trial court had jurisdiction and committed no legal error, we affirm.

Facts and Procedural History

When Michael and Teresa were married in 2001, K.D. was approximately three years old. J.F. was born of the marriage in late 2001. The parties separated in 2004, and on May 10, 2005, the trial court approved an agreed child custody and property settlement agreement. The parties acknowledged therein that one child, J.F., was born of the marriage and agreed that they would have joint legal custody of him, with Teresa awarded primary physical custody and Michael to have " reasonable, liberal and flexible" parenting time " which the parties can agree between themselves." Appellant's Appendix at 13. In addition, they agreed " that all of the foregoing parenting rights may include Teresa's daughter, [K.D.], at Michael's option." Id. at 13-14. For health insurance coverage reasons, the parties' marriage was not dissolved until October 7, 2005, by summary dissolution decree incorporating the child custody and property settlement agreement.

In the ensuing years, Michael included K.D. when he exercised parenting time with J.F. whenever possible. No mention is made in the record of the identity or whereabouts of K.D.'s biological father. On June 21, 2012, Michael filed an Emergency Petition for Modification of Custody, Parenting Time and Child Support, alleging:

3. . . . [P]ursuant to . . . the Child Custody and Property Settlement Agreement executed by the Parties . . ., [Michael] was granted the same parenting time rights with [Teresa's] daughter, [K.D.], age fourteen (14), that [Michael] enjoys with [J.F.]

4. . . . [Michael] included [K.D.] during parenting time with [J.F.] on each and every occasion that [Teresa] would allow same.

5. [Michael] is the only Father that [K.D.] has ever known, and she has always called him " Dad" and has manifested an intent to spend as much time with [Michael] as [Teresa] will allow.
6. Since the entry of the Decree herein, there has been a substantial and continuing change in circumstances that constitutes an emergency, to wit:
a. [Teresa] suffers from Huntington's Disease, which has progressively diminished her ability to physically and [sic] care for the minor children as well as to mentally and emotionally nurture them.

Page 212

b. [Teresa] has interfered and refused [Michael's] scheduled parenting time on an ongoing basis without any rational basis for doing so.

* * *

i. Conversely, [Teresa] has called [Michael] a plethora of times to pick up the minor children when [Teresa] is unable to manage the day-to-day requirements of managing two (2) active children.

j. [Teresa] is no longer able to drive and does not have a car, so [Michael] is required to provide all transportation for the minor children.

k. [Teresa] is constantly yelling at the minor children and is not able to maintain an even keel.

l. [Teresa] has moved five (5) times in four (4) years, and [Michael] has a good faith belief that [Teresa] has no recourse but to move again.

m. [Teresa] has been violent at the children's schools.

n. [K.D.] has been suspended from school because she was acting out, which is related to the stress of living with [Teresa].

* * *
8. [Michael] is willing to adopt [K.D.], if [Teresa] would agree.
9. [Michael] has a good faith belief that the best interests of the children are compromised by [Teresa's] continued physical custody in the face of [Teresa's] progressive disease and escalating irrationality, and [Michael] does not believe that the minor children are safe in [Teresa's] care.
WHEREFORE, [Michael] prays that this honorable Court will conduct an Emergency Hearing, grant [Michael] temporary custody of the minor children, appoint a Guardian ad Litem to make recommendations to the Court with respect to permanent custody, modify child support and parenting time to reflect the totality of the circumstances, ultimately award ...

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