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Brown v. Lunsford

Court of Appeals of Indiana

November 9, 2016

Amy L Brown, Appellant,
Adrian Lunsford, Appellee.

         Appeal from the Vanderburgh Superior Court Trial Court Cause No. 82D07-1109-JP-653 The Honorable Richard J. D'Amour, Judge

          Attorney for Appellant Kelly D. Corne Corne & Corne, LLC Newburgh, Indiana

          Attorney for Appellee Katharine Vanost Jones Evansville, Indiana

          Barnes, Judge.


         [¶1] Amy Brown appeals the trial court's order granting visitation with Brown's daughter, S.B., to Adrian Lunsford, Brown's former boyfriend, who is unrelated to S.B. We reverse.


         [¶2] Brown presents three issues for our review, which we restate as:

I. whether the trial court had "jurisdiction" to order visitation between Lunsford and S.B.;
II. whether Lunsford should have joined S.B. as a necessary party in the paternity action involving the parties' child A.L.; and
III. whether the trial court abused its discretion by ordering visitation between S.B. and Lunsford.


         [¶3] S.B. is Brown's daughter. S.B. was born in January 2007, and her biological father is neither involved in her life nor listed on her birth certificate. Brown and S.B. moved into Lunsford's house in Kentucky when S.B. was sixteen months old. When S.B. was two years old, Lunsford and Brown's son A.L. was born. Brown and Lunsford were never married. When S.B. was four years old, Lunsford and Brown separated. Brown and the children moved to Vanderburgh County, Indiana.

         [¶4] After Brown and Lunsford separated, S.B. visited Lunsford when Lunsford had parenting time with A.L. for "six (6) months the first time around and then [Brown] pulled her out for almost two (2) years and then maybe a year, maybe a little over a year the second time around that she went . . . so a year and a half total." Tr. p. 204. S.B. does not want to visit Lunsford. Brown discontinued S.B.'s visits with Lunsford "Because I noticed some behavioral changes in her . . . she would cry a lot, she was very confused, she was getting in trouble at school which was not . . . her at all." Id. at 204-05. Brown testified, "With [S.B.] [the behavioral changes were] kind of a continual thing until she was no longer down and then, you know, all the issues I had with school and things like that ceased." Id. at 206. Brown does not believe it is in S.B.'s best interests to visit Lunsford. At the time of the evidentiary hearing in this matter, Brown and Lunsford had been separated for over four years, and S.B. had not visited Lunsford since "last year some time." Id. at 23. The trial court did not appoint a guardian ad litem, and it did not interview or otherwise hear from S.B. directly regarding visitation with Lunsford.

         [¶5] On September 15, 2011, the State filed a Petition for Order of Support in a paternity action captioned: "In re the Paternity of [A.L.] by next friend, Amy L. Brown, Petitioner and Adrian Lunsford[, ] Respondent." App. p. 12. The trial court ordered Lunsford to pay child support for A.L. Thereafter, Lunsford filed, and the trial court granted, a request for parenting time with A.L. The parties also filed an agreed entry regarding retroactive child support for A.L. and a mediated agreed order regarding parenting time between Lunsford and A.L. None of these motions and orders were related to S.B. In June 2015, Brown, S.B., and A.L. relocated to Tennessee.

         [¶6] In September 2015, Lunsford filed a "Petition to Modify, " in which he requested an order granting him parenting time with S.B., "his stepdaughter since he was the only parent the child had known and that the mother has refused any parenting time . . . ." App. p. 35. Neither Brown nor Lunsford moved to join S.B. as a party to the paternity action regarding A.L. On December 9, 2015, the trial court heard evidence related to Lunsford's request for visitation with S.B.[1] On December 10, 2015, the trial court granted Lunsford visitation with S.B. one weekend per month during Lunsford's parenting time with A.L.

         [¶7] Brown then filed a motion to correct error and, simultaneously, a motion to reconsider and/or rehearing. In her motion to correct error, Brown raised, for the first time, arguments styled as improper forum, lack of jurisdiction, improper venue, and lack of standing. The trial court heard arguments on Brown's motions and, on February 3, 2016, it denied them. Brown now appeals.


         I. "Jurisdiction" to Order Visitation

         [¶8] Brown first contends the trial court lacked "jurisdiction" over S.B. because she was not a resident of Indiana and because "no action has been formally commenced." Appellant's Br. p. 11.

         [¶9] Brown does not contend the trial court lacked either subject matter or personal jurisdiction to hear this matter. Instead, she argues, generally, that the trial court did not have "jurisdiction" over S.B. and cites to a portion of Indiana's codification of the Uniform Child Custody Jurisdiction Act ("UCCJA") to support her argument. The relevant statute provides:

(a) Except as otherwise provided in section 4 of this chapter, an Indiana court has jurisdiction to make an initial child custody determination only if ...

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