MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                               Dec 01 2016, 9:41 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
John J. Uskert                                          Jane G. Cotton
Cynthia A. Marcus                                       Anderson, Indiana
Fishers, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Pete,                                       December 1, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1604-GU-847
        v.                                              Appeal from the Madison Circuit
                                                        Court
Ray Forrester,                                          The Honorable Mark K. Dudley,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Jason Childers,
                                                        Commissioner
                                                        Trial Court Cause No.
                                                        48C06-1603-GU-147, 48C06-1603-
                                                        GU-141



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016   Page 1 of 8
[1]   Following the entry of an order appointing Ray Forrester guardian of two

      minors, K.E. and D.F., Christopher Pete filed a number of motions requesting

      the trial court to set aside Forrester’s guardianship and appoint Pete guardian

      instead. An evidentiary hearing on Pete’s motions was commenced, but the

      hearing was not concluded due to time constraints. Before the trial court had

      the opportunity to hear the remainder of the evidence and rule on Pete’s

      motions, Pete initiated this appeal.


[2]   Concluding that Pete’s appeal is premature, we dismiss.


                                       Facts & Procedural History


[3]   Because the evidence in this case was not concluded and the trial court was not

      given the opportunity to issue a ruling on Pete’s motions, the facts are

      unsurprisingly in dispute. The parties, however, seem to be in agreement on

      certain key facts. Beginning in 2012, Pete was involved in a romantic

      relationship and cohabited with Charlotte Forrester (Mother) and her children

      from two previous relationships, K.E. and D.F. (the Children). Pete and

      Mother never married, and when their relationship ended in 2014, Mother

      moved in with her father, Forrester (Grandfather). The Children remained in

      Pete’s custody during the week and regularly spent weekends and holidays with

      Mother at Grandfather’s house, although the precise division of time is in

      dispute. The Children continued to see Grandfather after Mother moved out of

      Grandfather’s home in April 2015, but not as much. The parties are in

      agreement that the Children continued to reside primarily with Pete during this


      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016   Page 2 of 8
      time, but the precise amount of time the Children spent with Pete versus

      Mother versus Grandfather is unclear from the scant record.


[4]   In March of 2016, Mother executed consents to establish guardianship over the

      Children in Grandfather. Grandfather subsequently filed petitions to establish

      guardianships over the Children, in which he falsely averred that the Children

      were then residing with him.1 On March 22, 2016, the trial court awarded

      Grandfather guardianship of the Children without holding a hearing. Pete was

      not given notice of the guardianship proceedings, and he only became aware of

      the proceedings when custody of the Children was transferred to Grandfather.


[5]   Upon learning of the guardianship, Pete filed a motion to intervene in the

      guardianship proceedings and an “Emergency Motion for Temporary

      Guardianship and to Stay Guardianship Order.” Appellant’s Appendix at 29, 32.

      Shortly thereafter, Pete filed separate motions requesting that Grandfather’s

      guardianships over the Children be terminated and that Pete be appointed

      guardian instead. A hearing was held on Pete’s motions on April 15, 2016, but

      the time allotted for the hearing expired before Pete was able to finish

      presenting his evidence, and Grandfather was unable to even begin his

      presentation. The trial court instructed the parties to contact court staff in order




      1
        Grandfather and his attorney denied intentionally misleading the court with this statement. Grandfather’s
      attorney testified that his assistant mistakenly included this statement in the guardianship petition, and
      Grandfather testified that he signed the petition upon the belief that “as soon as I sign that paper” the
      Children would in fact be living with him. Transcript at 35. Because the evidence was not concluded, the
      trial court was deprived of the opportunity to make findings on this issue.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016           Page 3 of 8
      to schedule an additional hearing to conclude the evidence, and at that time,

      Pete orally requested immediate custody of the Children pending the

      completion of the evidentiary hearing. The trial court denied Pete’s request and

      the parties agreed to continue the presentation of the evidence on May 27,

      2016. Instead of doing so, Pete filed his notice of appeal. This appeal ensued.2


                                             Discussion & Decision


[6]   As an initial matter, we note that the motions panel of this court denied

      Grandfather’s motion to dismiss this appeal on the grounds that Pete was not

      appealing from a final judgment. This does not, however, preclude us from

      reconsidering the issue. It is well established that we may reconsider a ruling of

      our motions panel, but “‘we decline to do so in the absence of clear authority

      establishing that it erred as a matter of law.'” Cincinnati Ins. Co. v. Young, 852

      N.E.2d 8, 12 (Ind. Ct. App. 2006) (quoting Oxford Fin. Group, Ltd. v. Evans, 795

      N.E.2d 1134, 1141 (Ind. Ct. App. 2003)), trans. denied. See also Miller v. Hague

      Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (explaining that

      “[w]hile we are reluctant to overrule orders decided by the motions panel, this

      court has inherent authority to reconsider any decision while an appeal remains

      in fieri”). After carefully reviewing the record, we are persuaded that this is

      such a case.




      2
        On April 21, 2016, Pete filed a motion in this court to stay the trial court’s orders appointing Grandfather as
      the Children’s guardian. This court granted the motion on April 29, 2016. Grandfather subsequently filed a
      motion to reconsider the order granting the stay, which this court denied on May 20, 2016.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016               Page 4 of 8
[7]   Except as provided in Ind. Appellate Rule 4,3 this court has jurisdiction in all

      appeals from final judgments. Ind. Appellate Rule 5(A); Whittington v.

      Magnante, 30 N.E.3d 767, 768 (Ind. Ct. App. 2015). “Whether an order is a

      final judgment governs the appellate courts' subject matter jurisdiction.” Front

      Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v.

      Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). “The lack of appellate subject matter

      jurisdiction may be raised at any time, and where the parties do not raise the

      issue, this court may consider it sua sponte.” In re Estate of Botkins, 970 N.E.2d

      164, 166 (Ind. Ct. App. 2012).


[8]   A final judgment is one that “disposes of all claims as to all parties[.]” Ind.

      Appellate Rule 2(H)(1); see also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.

      Ct. App. 2002) (explaining that a final judgment “disposes of all issues as to all

      parties, to the full extent of the court to dispose of the same, and puts an end to

      the particular case as to all of such parties and all of such issues” (quoting

      Hudson v. Tyson, 383 N.E.2d 66, 69 (Ind. 1978)). Because the evidence in this

      case was not concluded and the trial court did not rule on Pete’s motions, he is

      not appealing from a final judgment within the meaning of App. R. 2(H)(1).


[9]   In his response to Grandfather’s motion to dismiss this appeal, however, Pete

      argued that his Emergency Motion for Temporary Guardianship and to Stay

      Guardianship Order should have been treated as a Trial Rule 60(B)(3) motion



      3
        App. R. 4 provides for appeal directly to our Supreme Court for a narrow class of cases, none of which are
      relevant here.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016            Page 5 of 8
       for relief from judgment due to fraud on the court based on Grandfather’s false

       representation in his guardianship petition that the Children were living with

       him. See T.R. 60(B)(3) (providing that the court may relieve a party from a

       judgment obtained by “fraud . . ., misrepresentation, or other misconduct of an

       adverse party). Pete further notes that rulings on T.R. 60(B) motions are

       deemed final and appealable. See T.R. 60(C) (providing that a judgment

       granting or denying relief under T.R. 60(B) “shall be deemed a final judgment,

       and an appeal may be taken therefrom”); App. R. 2(H)(3) (providing that a

       judgment is final “if it is deemed final under Trial Rule 60(C)).


[10]   Even if we accept Pete’s argument that his Emergency Motion was in substance

       a T.R. 60(B)(3) motion for relief from judgment and should have been treated

       as such, the fact remains that Pete initiated this appeal before the evidence was

       concluded and before the trial court had the opportunity to issue a ruling

       thereon. In other words, the trial court has not yet issued “a ruling or order . . .

       denying or granting relief” under T.R. 60(B). See T.R. 60(C). To the extent

       Pete argues that the trial court’s denial of his oral motion for immediate custody

       of the Children pending the completion of the evidentiary hearing should be

       treated as a denial of relief under T.R. 60(B), we disagree. Pete essentially

       argues that that the trial court should have found that Grandfather and his

       attorney had perpetrated a fraud on the court without giving them the

       opportunity to respond or present their own evidence and argument to rebut

       Pete’s claims, but basic considerations of fairness and due process prohibited

       the court from doing so. See T.R. 60(D) (providing that in considering a T.R.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016   Page 6 of 8
       60(B) motion, the trial court “shall hear any pertinent evidence”); Roy A. Miller

       & Sons, Inc. v. Indus. Hardwoods Corp., 775 N.E.2d 1168, 1171 (Ind. Ct. App.

       2002) (explaining that “due process clearly requires a fair opportunity to be

       heard” and that “[a]n opportunity to be heard includes the right to present

       evidence, confront adverse witnesses, make arguments, and receive judicial

       findings based upon the evidence and arguments”). Moreover, it is apparent

       from the trial court’s oral and written rulings that Pete’s motions remained

       pending at the end of the April 15, 2015 hearing. The trial court did not deny

       Pete relief by denying his oral motion for immediate custody of the Children

       pending the conclusion of the hearing. Rather, it merely preserved the status

       quo until the court had the opportunity to hear all of the evidence necessary to

       determine whether Pete was entitled to relief on the basis that Grandfather’s

       guardianship was obtained by fraud.


[11]   For all of these reasons, we conclude that Pete’s appeal is premature. Because

       Pete does not appeal from a final judgment,4 this court lacks subject matter

       jurisdiction to entertain this appeal and must therefore dismiss.5


[12]   Appeal dismissed.




       4
        We also note that Pete is not appealing from an interlocutory order deemed appealable pursuant to Ind.
       Appellate Rule 14.
       5
         Nothing in this opinion should be taken as a comment on the merits of Pete’s pending motions or the
       propriety of Grandfather’s actions with respect to obtaining guardianship of the Children. These issues
       remain for the trial court’s consideration.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016            Page 7 of 8
[13]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016   Page 8 of 8
