APPEAL FROM THE JEFFERSON CIRCUIT COURT. The Honorable James B. Morris, Special Judge. Cause No. 39C01-1108-JP-28.
ATTORNEYS FOR APPELLANT: BRYAN LEE CIYOU, LORI B. SCHMELTZER, CASSANDRA MELLADY, Ciyou & Dixon, P.C., Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: MARY BETH MOCK, Madison, Indiana.
VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.
VAIDIK, Chief Judge.
This case addresses the interaction between Indiana Trial Rule 76(B), which gives litigants the right to a change of judge, and Indiana Trial Rule 63(A), which requires a judge who hears evidence, if available, to make all rulings relating to that evidence.
In August 2012, after a hearing, Judge Ted Todd issued a final order addressing paternity, custody, child support, and other issues. R.A. (" Father" ) appealed that order. While the appeal was pending, Father filed a modification petition and a request for a change of judge. Judge Todd granted Father's change-of-judge request, and Judge James Morris (" Special Judge Morris" ) assumed jurisdiction. When this Court resolved Father's appeal, affirming in part, reversing in part, and remanding in part, a dispute arose over who would rule on the remanded issues--Judge Todd or Special Judge Morris. Special Judge Morris ultimately ruled that Trial Rule 63(A) required Judge Todd, who had since retired and taken senior-judge status, to rule on the remanded issues.
On appeal, Father contends that Trial Rules 76(B) and 63(A) conflict, and his right to a change of judge under Trial Rule 76(B) trumps Trial Rule 63(A)'s preference for the judge who heard the evidence. We conclude that the rules do not conflict; rather, they govern different aspects of Father's case--Father's change-of-judge request under Trial Rule 76(B) applies prospectively to his modification petition and Trial Rule 63(A) operates retroactively to ensure that the remanded issues are considered by the judge who heard the evidence, Judge Todd. We affirm.
Facts and Procedural History
Father and B.Y. (" Mother" ) have one child together, V.A., born in June 2003. Father and Mother were never married. When Mother became pregnant with V.A., Father invited her to move into his home. Mother, her two children, V.A., and Father all lived together in Father's home until June 2011 when Mother took the children and moved to Columbus, Indiana.
Shortly after Mother moved out of Father's home, Father filed a petition to establish V.A.'s paternity, as well as custody, parenting time, and child support. In December 2011 the trial court issued a provisional order establishing parenting time, which included bi-weekly phone calls between Father and V.A. In March 2012 Father filed a contempt petition alleging that Mother had not complied with the provisional order allowing him to have bi-weekly phone calls with V.A. On August 24, 2012, after a prolonged legal battle, Judge Todd issued a final order granting sole physical custody of V.A. to Mother, requiring Father to pay child support, and providing Father with parenting time pursuant to the Indiana Parenting Time Guidelines. The trial court did not address the issue of legal custody or Father's pending contempt petition.
Father appealed the August 2012 order, raising several issues. This Court issued an unpublished opinion affirming in part, reversing in part, and remanding in ...