FOR PUBLICATION                                           FILED
                                                        Jan 30 2012, 9:32 am


                                                               CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEY FOR APPELLANT:                        ATTORNEY FOR APPELLEE:
E. PAIGE FREITAG                               R. PATRICK MAGRATH
Jones McGlasson & Benckart                     Alcorn Goering & Sage, LLP
Bloomington, Indiana                           Madison, Indiana




                                 IN THE
                       COURT OF APPEALS OF INDIANA

A.T. (Mother),                                 )
                                               )
       Appellant,                              )
                                               )
                 vs.                           )       No. 39A05-1107-DR-335
                                               )
G.T. (Father),                                 )
                                               )
       Appellee.                               )


                       APPEAL FROM THE JEFFERSON CIRCUIT COURT
                              The Honorable Ted R. Todd, Judge
                                Cause No. 39C01-1101-DR-36


                                    January 30, 2012


                             OPINION – FOR PUBLICATION

DARDEN, Judge
                             STATEMENT OF THE CASE

      A.T. (“Mother”) appeals the trial court’s denial of her petition for a change of

judge in a custody modification action filed by G.T. (“Father”).

      We reverse and remand with instructions.

                                         ISSUE

             Whether the trial court erred in denying Mother’s petition for change
             of judge.

                                         FACTS

      Mother and Father were divorced on December 28, 2009, in Trimble County,

Kentucky. The Trimble Family Court awarded joint custody of the two minor children to

Mother and Father, with Father to act as the primary custodial parent.

      Later, Mother, Father, and the children apparently moved to Madison, Indiana.

On February 2, 2010, a no contact order was issued by the Jefferson Superior Court based

on allegations of domestic violence by Father upon Mother. The Trimble Family Court,

which retained jurisdiction over domestic issues between the parties, ordered that Mother

should have temporary physical custody of the children.

      On October 6, 2010, the Trimble Family Court restored the joint custody

arrangement with both Mother and Father sharing parenting time. On November 30,

2010, the Trimble Family Court ordered that the domestic relations case should be

transferred to the Jefferson Circuit Court, and the Jefferson Circuit Court assumed

jurisdiction on January 11, 2011.
                                            2
       Mother subsequently moved to Bloomington, Indiana. On May 4, 2011, Father,

who had been found not guilty of the felony domestic abuse charges but convicted of

misdemeanor domestic battery,1 filed a petition to modify custody, alleging that a

substantial and continuing change of circumstances required an award of sole physical

custody to Father with reasonable visitation rights to Mother. On the same day, Father

requested a hearing on his petition to modify custody. Neither of his pleadings showed a

certificate of service to Mother upon filing.

       On May 12, 2011, the Jefferson Circuit Court set a hearing for June 2, 2011;

however, the order setting the hearing did not state the nature of the hearing. Mother

received the trial court’s order by regular mail on May 25, 2011. On May 27, 2011,

Mother received a copy of Father’s petition to modify custody. On the same day, Mother

filed a motion for continuance and a motion entitled “Motion For Change Of Venue And

Motion For Change Of Venue From Judge.” (Mother’s App. 24). This motion states that

Mother “respectfully requests that pursuant to Indiana Trial Rules 76 and 79, moves the

Court that there be a change [of] venue of county and pleads in the alternative for a

change of Judge and a special Judge from a different county be appointed . . . .” Id.

       On June 1, 2011, the trial court denied Mother’s motions without a hearing.

Mother, who appeared pro se because of the difficulty in obtaining counsel for the June 2,

2011 modification hearing, renewed her requests in open court at the hearing, but the trial
1
  On October 13, 2011, this court reversed Father’s conviction for misdemeanor domestic battery. [M.T.]
v. State, 954 N.E.2d 1105 (Ind. Ct. App. 2011).

                                                  3
court again denied them. After the hearing, the trial court awarded sole physical custody

to Father with Mother to receive visitation rights under the Indiana Parenting Time

Guidelines.

                                                   DECISION

          Mother contends that the trial court erred in denying her request for automatic

change of judge under Trial Rule 76. She argues that the trial court had no discretion to

deny the request and that the trial court had no jurisdiction to rule on Father’s petition for

modification of custody.

          Father responds that Mother’s petition filed on May 27, 2011, is a request for

change of venue under Trial Rule 76(A) and an alternate request for change of judge

under the specific conditions of Trial Rule 79(C).2 Father maintains that Mother did not

request a Trial Rule 76 automatic change of judge in her May 27, 2011 motion and that


2
    Trial Rule 79(C) states:

          A judge shall qualify and recuse whenever the judge, the judge’s spouse, a person within
          the third degree of relationship to either of them, the spouse of such a person, or a person
          residing in the judge’s household:

                   (1) is a party to the proceeding, or an officer, director or trustee of a party;

                   (2) is acting as a lawyer in the proceeding;

                   (3) is known by the judge to have an interest that could be substantially affected
                   by the proceeding; or

                   (4) is associated with the pending litigation in such fashion as to require
                   disqualification under the Code of Judicial Conduct or otherwise.

          Upon disqualification or recusal under this section, a special judge shall be selected in
          accordance with Sections (D), (E), and (H) of this rule.

                                                         4
she should not be able to raise the issue for the first time on appeal. Father also maintains

that Mother’s request was untimely.

       Trial Rule 76(B) provides that in civil actions, where a change may be taken from

the judge, “such change shall be granted upon the filing of an unverified application or

motion without specifically stating the ground therefor by a party or [her] attorney.”

Under the rule, a change may be taken from a judge in connection with a petition to

modify a dissolution decree. When a party files a motion for a change of judge, the trial

court is divested of jurisdiction except to grant the change or act on emergency matters.

Bedree v. DeGroote, 799 N.E.2d 1167, 1172 (Ind. Ct. App. 2003), trans. denied.

       Here, Mother filed an unverified motion specifically requesting either a change of

venue to Monroe County, or in the alternative, a change of judge in connection with

Father’s petition to modify the dissolution decree. Indeed, in the opening paragraph of

her motion, she requested such changes under both Rules 76 and 79. In so doing, she

listed the various factors that she believed warranted a change of venue from the county.

Even though she was not required to do so, she also listed various factors that she

believed warranted a change of judge. We cannot conclude that an automatic change of

judge, available under Rule 76(B) without the statement of the grounds for such change,

was lost when the party who requested the change went beyond the bare requirements of




                                             5
the rule and enumerated factors related to her request.3 The trial court erred in denying

the request for automatic change of judge and in ruling on Father’s petition for

modification.

        Trial Rule 76(C) provides time limitations upon the party seeking an automatic

change of judge under Trial Rule 76(B). Father contends that Mother’s motion for

change of judge was untimely under Trial Rule 76(C)(5).                     Father cites McClure v.

Cooper, 893 N.E.2d 337, 340 (Ind. Ct. App. 2008) in support of his contention.

        Trial Rule 76(C)(5) provides:

        [W]here a party has appeared at or received advance notice of a hearing
        prior to the expiration of the date within which a party may ask for a
        change of judge or county, and also where at said hearing a trial date is set
        which setting is promptly entered on the Chronological Case Summary, a
        party shall be deemed to have waived a request for change of judge or
        county unless within three days of the oral setting the party files a written
        objection to the trial setting and a written motion for change of judge or
        county[.]

(Emphasis added).

        In McClure, a panel of this court considered the timeliness of a motion for change

of judge in an appeal from a small claims proceeding where the motion was filed three

days before the trial. The majority noted that the goal of small claims proceedings is to


3
 We are aware that on the day before the modification hearing, the Guardian Ad Litem filed a response to
Mother’s motion in which she requested that the trial court “not allow further delay.” (Father’s App. 71).
The proper response to the Guardian Ad Litem’s request was immediately to begin the process for the
appointment of a new judge.




                                                    6
“insure informal and speedy decisions without application of procedural rules.” 893

N.E.2d at 340 (quoting Multivest Prop. v. Hughes, 671 N.E.2d 199, 201 (Ind. Ct. App.

1996)).     The majority then opined that Trial Rule 76(C)(5) should be read to require a

party to file a motion to change judge within three days “after receiving notice from the

court that a trial date has been set . . . .” Id. The majority applied the three-day rule even

though an oral setting of the trial date was not made at a hearing.

       In his dissent, Judge Kirsch argued that Trial Rule 76(C)(5) is not applicable

absent a hearing wherein the trial court sets the matter for trial. Id. at 341. The dissent

emphasized that the rule requires “(1) that a party appear at or have notice of a hearing,

(2) that the court at that hearing sets the matter for trial, and (3) that the trial date is

promptly entered into the CCS.”        Id. at 342. (Emphasis in original).       The dissent

concluded that the rule does not apply “because the trial setting was not made in course

of conducting a hearing . . . .” Id.

       Rules of statutory construction are applicable to the interpretation of trial rules.

Carter-McMahon v. McMahon, 815 N.E.2d 170, 175 (Ind. Ct. App. 2004).                     The

applicable rule of construction in this case is that, where possible, “every word is to be

given effect, and no part of the statute is to be construed so as to be meaningless if it can

be reconciled with the rest of the statute.” See Gray v. D & G, Inc., 938 N.E.2d 256, 259

(Ind. Ct. App. 2010).    As the McClure dissent emphasizes, Trial Rule 76(C)(5) clearly

applies only when a hearing has been held and the trial date was set at that hearing. In

                                              7
addition, the three-day requirement is premised upon an oral setting of the trial date. In

the context of a small claims proceeding where the general intent is to insure informal

and speedy decisions without application of procedural rules, the McClure majority reads

these provisions out of Trial Rule 76(C)(5). We do not question the McClure majority’s

reasoning within the context of small claims actions; however, in the present general

jurisdiction case we must agree with the dissent’s emphasis upon each word and phrase

of the rule.

       Here, where the trial court did not hold a hearing and set a trial date, the

limitations of Trial Rule 75(C)(5) are not applicable. Accordingly, Mother was not

required to file her motion within three days after receiving notice that a trial date had

been set. Therefore, her motion to change judge was not untimely.

                                    CONCLUSION

       The trial court should have automatically granted the request for automatic change

of judge under Trial Rule 76(B). Furthermore, the trial court should not have held the

modification hearing, as it was deprived of jurisdiction by the timely filing of the Trial

Rule 76(B) request.

       We reverse and remand with instructions that the judge grant Mother’s request for

change of judge and that the procedures for the selection of a new judge be immediately




                                            8
implemented. We urge the parties to cooperate in the timely selection of a new judge and

to consider the welfare of their children in resolving this matter.4

       Reversed and remanded.

BAKER, J., and BAILEY, J., concur.




4
  We note that Mother’s request for change of venue from the county was unverified. Accordingly, a
proper request was not timely filed, and a change of venue from the county is improper. See Trial Rule
76(A).

                                                  9
