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In re Paternity of S.R.W.

Court of Appeals of Indiana

April 18, 2018

In Re: The Matter of the Paternity of S.R.W., By Next Friend, Michele Renee Bessette, a/k/a Michele Renee Wright Bessette, a/k/a Michele Renee Wright, Appellant-Petitioner,
v.
Bradley Turflinger, Appellee-Respondent.

          Appeal from the Allen Superior Court Trial Court Cause No. 02D07-0102-JP-87 The Honorable Daniel G. Pappas, Special Judge

          Attorneys for Appellant Benjamin D. Ice William A. Ramsey Barrett McNagny, LLP Fort Wayne, Indiana

          Attorney for Appellee Christopher Bandemer Fort Wayne, Indiana

          Barnes, Judge.

         Case Summary

         [¶1] Michele Renee Bessette ("Mother") appeals the trial court's denial of her motion for change of judge in this parenting time dispute with Bradley Turflinger ("Father"). We affirm.

         Issue

         [¶2] Mother raises one issue, which we restate as whether the trial court properly denied her motion for change of judge pursuant to Indiana Trial Rule 76(C)(3). Father cross-appeals, arguing that Mother's appeal should be dismissed as an improper interlocutory appeal.

         Facts

         [¶3] Mother and Father are the parents of S.R.W., who was born in January 2001. S.R.W. lives with Mother in Indiana, and Father lives in Minnesota. Mother and Father have joint legal and physical custody, with Father exercising parenting time according to the distance-based guidelines. The parties have had numerous significant disagreements and contempt proceedings over custody, parenting time, and support. In March 2014, the trial court found Mother in contempt and sentenced her to "sixty (60) days in the Allen County Confinement Facility, suspended on the condition that she abide by the Orders of the Court as set forth herein, and all other prior Orders of the Court that do not conflict with this Order." Appellant's App. Vol. II p. 49.

         [¶4] In 2015, Father filed additional contempt proceedings against Mother. The trial court found Mother in contempt twice. In December 2016, the trial court held a hearing on sanctions for the contempts. The trial court ordered Mother to serve thirty days of her previously suspended sentence, ordered her to serve two thirty-day sentences for her new contempt findings, and suspended the new thirty-day sentences upon the condition that she strictly comply with the trial court's parenting time order and upon the condition that she pay $5, 000 in attorney fees to Father's counsel within ninety days. Mother was then taken into custody to serve the first thirty-day previously-suspended sentence.

         [¶5] Mother appealed, and we affirmed in part, vacated in part, and remanded to the trial court. On appeal, Mother challenged the trial court's imposition of thirty days of incarceration and the two new suspended sentences. Mother did not challenge the condition that she pay $5, 000 in attorney fees to Father's attorney. We held that the thirty-day incarceration was "punitive" and vacated that portion of the order. In re Paternity of S.R.W., No. 02A05-1701-JP-144, slip op. at 14 (Ind.Ct.App. Sept. 29, 2017). We affirmed the imposition of the two thirty-day suspended sentences, but instructed the trial court to "revise its order, striking the modifiers 'strict' and 'strictly' and conditioning execution of Mother's suspended sentences only upon willful non-compliance with its orders." Id. at 16-17.

         [¶6] After remand to the trial court, Father filed a motion for an injunction to prevent Mother from changing S.R.W.'s schooling for the 2017/2018 school year, a verified petition for rule to show cause, a motion to modify support, and a motion for proceedings supplemental. A January 2017 motion to reinstate Mother's jail sentence also remained pending. Mother filed a motion to change judge pursuant to Indiana Trial Rule 76(C)(3). The trial court issued the following order addressing Father's January 2017 motion to reinstate Mother's jail sentence and Mother's motion for a change of judge:

1. "In a paternity action, Ind. Trial R. 76(B) allows a party to make one change-of-judge request before entry of a final decree and one change-of-judge request in connection with a petition to modify that decree." In Re V.A., 10 N.E.3d 61, 64 (Ind.Ct.App. 2014). Neither [Mother] nor [Father] timely requested a change of judge prior to the entry of the final decree in this paternity case entered on April 20, 2001. Accordingly, both parties waived their first opportunity for a change of judge.
2. Subsequently, [Mother] timely requested a change of judge on October 28, 2013, and Special Judge Daniel G. Pappas was appointed by the Clerk as a special judge in this cause on December 5, 2013. Accordingly, [Mother] exercised her second opportunity for a change of judge and is not entitled to . . . another change of judge for prospective pleadings ...

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