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In re Paternity of V.A.

Court of Appeals of Indiana

May 30, 2014

IN RE: THE PATERNITY OF V.A., a Minor Child, R.A., Father, Appellant-Petitioner,
v.
B.Y., Mother, Appellee-Respondent

APPEAL FROM THE JEFFERSON CIRCUIT COURT. The Honorable James B. Morris, Special Judge. Cause Nos. 39C01-1210-JM-62, 39C01-1108-JP-28.

ATTORNEYS FOR APPELLANT: BRYAN LEE CIYOU, LORI B. SCHMELTZER, Ciyou & Dixon, P.C., Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: MARY BETH MOCK, Law Office of Mary Beth Mock, Madison, Indiana.

MAY, Judge. VAIDIK, C.J., and RILEY, J., concur.

Page 66

OPINION

MAY, Judge.

R.A. (" Father" ) appeals the denial of his motion to correct error and the order reinstating his visitation time.[1] As the trial court did not err by denying his motion to correct error and the parenting time issue is moot,[2] we affirm.

FACTS AND PROCEDURAL HISTORY

B.Y. (" Mother" ) gave birth to V.A. (" Child" ) in 2003. Mother and Father never married. In June 2011, Mother and Father ended their relationship. On August 3, 2011, Father filed a petition in Jefferson County to establish paternity and determine custody, parenting time, and child support. In August 2012, after a hearing, Judge Ted Todd issued a final order addressing paternity, custody, child support, and other issues. Father appealed that order.

While the appeal was pending, Father asked for a change of judge and Special Judge James Morris assumed jurisdiction. The same day Father filed the motion for

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change of judge, he filed a petition to modify custody and support. Mother moved to dismiss, arguing the paternity court lacked jurisdiction to decide Father's petitions because the issues were part of Father's pending appeal of the August 24, 2012, order. Judge Morris dismissed Father's petition to modify custody and support without prejudice, citing lack of jurisdiction. On March 28, 2013, Father filed a motion to correct error.

On May 10, 2013, we decided Father's appeal and remanded the case for the trial court to determine V.A.'s legal custody, " to clarify the factual basis for its child support order and, if the award is a deviation from the child support guidelines, to enter findings articulating the facts supporting that conclusion," R.A. v. B.Y. (In re Paternity of V.A.), 987 N.E.2d 548, (Ind.Ct.App. 2013), and to address Father's contempt petition.

On May 16, 2013, Judge Morris held a hearing on Father's motion to correct the error alleged in the dismissal of his petition to modify custody and support. Judge Morris denied his motion, again citing lack of jurisdiction.

Thereafter, the parties disputed whether Judge Todd or Special Judge Morris should rule on the issues remanded to the trial court after our resolution of Father's appeal of the August 24, 2012, order. Judge Morris determined Judge Todd should rule on the remanded issues. Father appealed this determination, and we affirmed in an opinion decided today. In re V.A., No. 39A04-1310-JP-512, 10 N.E.3d 61.

At a hearing on July 1, 2013, Mother requested dismissal of an ex parte order that she had obtained on October 30, 2012, to protect Child from Father.[3] Judge Morris granted her request and immediately considered how to reinstate Father's parenting time. After hearing testimony from the guardian ad litem, Judge Morris issued an order that provided parenting time would be gradually phased in between July 4, 2013 and July 27, 2013, at which time Father would " resume visitation as outlined in the Indiana Parenting Time Guidelines and as set for [sic] in the prior order, provided the Court finds no issues have arisen during these times." (App. at 72.)

DISCUSSION AND DECISION

Father appeals the denial of his motion to correct error, which challenged the trial court's dismissal of Father's verified petition to modify physical and legal custody and to modify child support. We review denial of a motion to correct error for abuse of discretion. Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind.Ct.App. 2007). An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances before the court, or the reasonable inferences therefrom. Id.

The trial court dismissed Father's petition to modify on the ground the court lacked jurisdiction. Father brought his petition to modify while his appeal of the trial court's original paternity decree was pending. Normally an appeal of a final judgment transfers general jurisdiction of the case to this court, thereby suspending any further action by the trial

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court.[4] City of New Haven v. Allen Cnty. Bd. of Zoning Appeals, 694 N.E.2d 306, 310 (Ind.Ct.App. 1998), trans. denied . At issue in Father's prior appeal were the validity of the trial court's determinations of child custody and support. As Father's subsequent petition also addressed custody and support, the trial court properly determined it did not have jurisdiction to rule on the petition to modify.[5] Accordingly, we cannot hold the court abused its discretion when it denied Father's motion to correct error. We accordingly affirm the denial of Father's Motion to Correct Error regarding the dismissal of his petition to modify custody and support.

Affirmed.

VAIDIK, C.J., and RILEY, J., concur.


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