                                                                 FILED
      MEMORANDUM DECISION                                    Aug 05 2016, 6:36 am

                                                                 CLERK
                                                             Indiana Supreme Court
      Pursuant to Ind. Appellate Rule 65(D), this               Court of Appeals
                                                                  and Tax Court
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Carl Paul Lamb                                            Lisa M. Joachim
      Carl Lamb & Associates                                    Richard A. Mann, P.C.
      Bloomington, Indiana                                      Indianapolis, Indiana



                                                      IN THE
              COURT OF APPEALS OF INDIANA

      Rahlina D. Funk,                                         August 5, 2016

      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               55A01-1512-DR-2223
              v.                                               Appeal from the Morgan Superior
                                                               Court
                                                               The Honorable Peter R. Foley, Judge
      Raymond A. Funk,
                                                               Cause No. 55D01-1103-DR-546
      Appellee-Petitioner.




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Respondent Rahlina D. Funk (“Mother”) and Appellee-Petitioner

      Raymond A. Funk (“Father”) were married in 2003. Mother and Father’s first

      child S.F. was born in 2006. In late 2010, Mother, who was pregnant, left for


      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 1 of 27
      Florida with S.F. and communicated to Father, eventually, that she would not

      return. In March of 2011, Mother requested and received a temporary

      restraining order from the 9th Circuit Court of Osceola County, Florida (“the

      Florida Court”). Later that month, Father filed a dissolution petition in the

      trial court. The couple’s second child C.F. was born in June of 2011.


[2]   In July of 2012, after Mother had failed to comply with several orders to return

      the children to Indiana, the trial court ordered that Father’s mother, Donna

      Funk, be awarded custody of the children. Donna has never taken custody of

      the children. Also in July of 2012, the trial court issued a writ of bodily

      attachment for Mother and the State charged Mother with two counts of Class

      D felony interference with a custody order. Later in 2012, Mother’s motion to

      cede jurisdiction over the custody issue to the Florida Court was denied, a

      denial she attempted to appeal as a discretionary interlocutory appeal. This

      court declined to assume jurisdiction over the interlocutory appeal. Mother

      then sought a writ of mandamus from the Indiana Supreme Court, which

      petition was denied.


[3]   In September of 2013, the Florida Court ceded jurisdiction over the custody

      issue to the trial court. In August of 2015, the trial court held a final hearing on

      Father’s dissolution petition, which hearing Mother did not attend. In

      November of 2015, the trial court issued its dissolution decree in which, inter

      alia, it dissolved Father and Mother’s marriage and awarded full physical and

      legal custody of S.F. and C.F. (collectively, “the Children”) to Father. The

      following issues are presented for appellate consideration:

      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 2 of 27
              I.      whether the res judicata and/or law-of-the-case doctrines
                      bar consideration of the issue of jurisdiction;
              II.     whether the trial court erred in failing to give full faith and
                      credit to the Florida Court’s “initial custody order” before
                      that court ceded jurisdiction to the trial court;
              III.    whether the trial court erred in granting Donna custody of
                      the Children in 2012; and
              IV.     whether the trial court erred in awarding sole custody of
                      the Children to Father.
      Because we reject all of the above arguments, we affirm.



                            Facts and Procedural History
[4]   Most of the facts relevant to this appeal were related by the trial court in its

      decree of dissolution, issued on November 18, 2015:


                                     I.      FINDINGS OF FACT
              1.   Father filed his Petition for Dissolution of Marriage on
              March 16, 2011.
              2.      Father and Mother were married on May 14, 2003.
              3.     Father lived in the State of Indiana and Morgan County
              for the six (6) months immediately preceding the filing of his
              Petition and this Court has jurisdiction over the matter pursuant
              to I.C. 31-15-2-6.
              4.   There are two (2) minor children born of this marriage,
              namely: [S.F.] (DOB: 11/28/2006) and [C.F.] (DOB:
              06/09/2011).
              5.    There has been an irretrievable breakdown of the marriage
              such that the marriage should be dissolved.
              6.    At the time of the final hearing in this matter, Mother is
              not known to be pregnant.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 3 of 27
        7.     The Court takes judicial notice of the pleadings and filings
        in the matter of State of Indiana v. Rahlina D. Funk, Cause
        Number 55D03-1312-FD-001640, currently pending in the
        Morgan Superior Court 3.
        8.    The Court takes judicial notice of the Court’s file, the prior
        testimony at all previous hearings in this matter, and the Court’s
        own orders.
                                 A.       Procedural History
        9.     This Court conducted a preliminary hearing in this matter
        on August 22, 2011, and scheduled the matter for a further
        preliminary hearing. At the August 22, 2011 hearing the Court
        ordered that Father could have parenting time with the children
        at the Martinsville City Park on that afternoon.
        10. The Court next held a hearing on December 13, 2011.
        Over the objections of Mother, the Court ordered Father to have
        Skype and telephonic communication with the children three (3)
        days a week.
        11. On March 6, 2012 the preliminary hearing was completed
        and the Court issued its Preliminary Order on March 7, 2012.
        12. The Court’s Preliminary Order awarded legal and physical
        custody of the children to Mother and Father was granted several
        weeks of unsupervised parenting time with the children to occur
        at paternal grandmother’s home. Father’s parenting time
        included one (1) week at spring break, the first two (2) weeks of
        summer break, one (1) week at fall break, and one (1) week the
        week before Christmas.
        13. Between the Preliminary Hearing and the next hearing
        before the Court on July 27, 2012, the parties filed several
        motions with the Court.
        14. On June 12, 2012, the Court issued an order, among other
        things, requiring Mother to bring the children to the State of
        Indiana within 14 days of the order. On June 28, 2012, Father
        filed his Verified Petition for Permanent Injunction, For
        Temporary Restraining Order, and for Emergency Petition For

Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 4 of 27
        Modification of Custody. On July 2, 2012, the Court issued an
        order setting Father’s Verified Petition for hearing.
        15. The next hearing was conducted on July 27, 2012. Mother
        and Father appeared at the hearing with their respective
        attorneys. The Court found that there had been a substantial
        change in circumstances since the Preliminary Hearing and
        awarded custody of the minor children to Father’s mother,
        Donna Funk (“Donna”). The Court found that Mother had
        failed to abide by the Court’s many orders to bring the children to
        Indiana and had prevented Father from having parenting time
        with the children. The Court ordered that the children be
        enrolled at schools in Indiana, that Mother and Father have full
        psychological evaluations, that the children be evaluated by Dr.
        Jason Warner, Ph.D., LMFT, LMHC, and that Donna be
        entitled to travel to Florida to pick the children up and return
        them to Indiana.
        16. On August 10, 2012, based upon Mother’s failure to
        cooperate with the Court’s prior orders, the Court issued a Writ
        of Attachment.
        17. Mother had filed an action for a civil order of protection
        and custody in the 9th Circuit Court, Osceola County, Florida,
        Cause No. 2011-DR-1043. On August 10, 2012, this Court
        issued an order reciting that [the previous judge on this case] had
        spoken with Judge Arnold of the Osceola Court and they had
        concurred that Indiana would retain jurisdiction in this matter.
        18. The Court next conducted a hearing on the jurisdictional
        issues only on October 5, 2012. Mother did not appear at the
        hearing, appearing by counsel only. The Court denied Mother’s
        request to cede jurisdiction of the custody issue to the Florida
        Court.
        19. Mother then filed a request to certify certain orders for
        interlocutory appeal, which request was granted by the Court.
        Mother filed her Notice of Appeal on November 26, 2012. On
        April 5, 2013, the Court of Appeals issued an Order in Cause
        55A01-1209-DR-428 dismissing Mother’s appeal with prejudice.

Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 5 of 27
           21.[1] Mother then filed an original action of mandamus with the
           Indiana Supreme Court. That action was dismissed by the
           Indiana Supreme Court, Cause No. 55S00-l309-OR-627, on
           October 1, 2013.
           22. On September 26, 2013, Judge Arnold issued an order in
           the Florida litigation that relinquished and ceded jurisdiction
           over all issues stemming from the parties’ marital relationship
           and divorce to The State of Indiana, including without limitation
           the issues of child custody, visitation time-sharing and support.
           23.      Numerous other motions were filed by both parties.
           24. Final Hearing was conducted on August 25, 2015. Each
           party had filed a request for findings of fact and conclusions of
           law pursuant to Trial Rule 52(A). The Court granted the parties
           to and including September 25, 2015 to file their proposed
           findings of facts and conclusions of law.
                                         B.       Findings of Fact
           25. Father resides in Indianapolis with his mother, Donna
           Funk. Father currently is a student at Ivy Tech and works part
           time at the Ivy Tech library. Father began taking classes in the
           fall of 2014 and began working at the library in March 2015.
           Father is 38 years old and has a valid driver’s license.
           25. Father and Donna reside in a three (3) bedroom home that
           is owned by Donna.
           26.      Father has resided with Donna since Spring 2012.
           27. Father has no children other than [S.F.] and [C.F.].
           Father last saw his children on a spring break visit in March,
           2012, last had telephone communication with them in August
           2012, and last had Skype communication with them in
           July/August 2012.




1
    There is no paragraph 20 in the trial court’s decree of dissolution.


Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 6 of 27
        28. Since 2011 Father has made significant changes in his life.
        He has lost weight, approximately 100 pounds, and is healthier
        physically and mentally. In 2011 Father began receiving Social
        Security Disability. Father’s disability ended in 2014 and he no
        longer receives any benefits.
        29. Father suffered a traumatic brain injury (TBI) in a work-
        related accident in 2003. Father suffered many symptoms as a
        result of the injury, including some mental health issues.
        30. Father sought treatment for his mental health issues at
        Centerstone and was under the care of his psychologist, Mr.
        Tabaki, and his psychiatrist, Dr. Leach. Father admits he was
        “pretty messed up” in 2012, but indicates he is now healthy and
        not experiencing any symptoms. Father completed his treatment
        with Centerstone at the end of 2012.
        31. Father is no longer prescribed medication. He last took
        Celexa and Cymbalta in 2013.
        32. Father has not had a seizure or experienced dizziness for a
        year and a half, each of which were side effects of his medication
        at the time. Father has been off of his seizure medications since
        March 2014. Father has been released by Dr. Glander and Dr.
        McMahon but would seek routine care and follow any
        recommendations of doctors.
        33. Even though Mother has repeatedly accused Father of
        incidents of domestic violence during their marriage, the Court
        cannot conclude that Father did engage in domestic violence or
        that Father presents a current threat to the health, safety, and
        welfare of the minor children. Father’s life appears to be
        structured and free from the chaos present during the marriage or
        at the initiation of this action.
        34. Father’s sister, Leslie Fergerson, lives near Father and had
        Father babysit her six (6) year old child on a consistent basis.
        Ms. Fergerson has no concerns about Father’s conduct or
        behavior around her child and trusts Father to care for her child.



Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 7 of 27
        35. Mother moved to Florida in early 2011 and has continued
        to reside in Florida with the minor children. Mother’s current
        living situation is unknown. Mother’s address is unknown and it
        is not known if Mother works or how Mother supports herself.
        36. Mother has refused to cooperate with the legal process.
        Mother last attended a hearing in this matter on July 27, 2012.
        There is an active writ of attachment against Mother in this case.
        In addition, on July 27, 2012, Mother was charged criminally
        with two (2) counts of interference with a custody order, as Class
        D Felonies, in the matter of State of Indiana v. Rahlina Funk,
        55D03-1312-FD-1640. A warrant was issued for the arrest of
        Mother. The warrant remains unserved and Mother has failed to
        personally appear for any proceedings in the criminal matter.
        Mother remains a fugitive from justice.
        37. Mother was aware that the Florida Court relinquished and
        ceded jurisdiction to this Court as of September 26, 2013, yet
        Mother has continued to remain a fugitive from justice, has failed
        to appear at hearings, has failed to cooperate with discovery, and
        has failed to comply with this Court’s orders.
        38. Mother’s actions have prevented the Court from
        considering Mother’s present circumstances in its ruling. The
        Court must rely upon Mother’s prior testimony at hearings and
        Father’s testimony.
        39. Mother moved to Florida with [S.F.] in early 2011, while
        pregnant with [C.F.]. Upon moving to Florida Mother filed a
        civil action for an ex parte civil order of protection against
        Father, alleging prior domestic violence by Father. Mother’s
        request was granted and Father appeared at a subsequent hearing
        in Florida and then agreed to conditions and restrictions
        concerning custody and parenting time.
        40. After Mother received an adverse ruling in the Preliminary
        Order on March 7, 2012, Mother has continually engaged in a
        course of conduct to prevent Father from seeing his children.
        Mother failed to cooperate with any of the subsequent court
        orders providing Father parenting time or modifying custody to

Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 8 of 27
        Donna Funk. Mother foiled Donna Funk’s attempts to locate
        her and the children in order to carry out the provisions of the
        Court’s July 27, 2012 order. Donna Funk attempted to locate
        Mother and sought the assistance of local law enforcement and
        the FBI in Florida, all to no avail. Mother’s actions have been
        intentional and the resulting estrangement of Father from his
        children has been detrimental to the emotional needs of the
        children. The Court must conclude that Mother’s actions have
        been harmful to the minor children.
        41. Mother has a history of mental illness in her family and a
        history of drug abuse. Mother frequently used marijuana up until
        the time she left for Florida. Mother has had a tumultuous
        relationship with her parents. At age 19 Mother attempted
        suicide and has been suicidal on and off during the parties’
        marriage.
        42. During the marriage Father was the primary caregiver to
        [S.F.]. Mother did breastfeed [S.F.], but left all other primary
        care duties to Father. Mother worked from home in an online
        retail business and Father took care of [S.F.] and the household.
        Mother often acted irrationally and was abusive to Father.
        Mother often became upset and would act physically towards
        Father.
        43. Mother continuously interfered with Father’s Skype and
        telephone communications with the children before they were
        unilaterally discontinued by Mother in 2012.
        44. When Father did last visit with the children in March
        2012, Mother accused Father of inappropriate contact with the
        children and filed a report with DCS. Mother’s allegations are
        unsubstantiated and denied by Father. Mother has failed to offer
        any evidence to support her allegations. Mother’s
        uncorroborated allegations are not considered credible by this
        Court.
        45. Father’s spring visit with the children in 2012 went well
        and Father’s bond with [S.F.] was quickly re-established. During
        the visit, Mother continued to attempt to interfere or cut the visit

Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 9 of 27
        short. Mother left with [S.F.] before Father had an opportunity
        to say good-bye to [S.F.]. Mother’s actions were purposeful and
        part of her continued efforts to interfere with or eliminate
        Father’s relationship with his children.
        46. Mother failed to cooperate with Father’s discovery
        requests. As a result, this Court issued its Order Re: Discovery
        Sanctions on August 14, 2015. The Court incorporates the
        findings and conclusions set forth in the August 14, 2015 order
        herein. In addition to an award of attorney’s fees to Father, the
        Court also limited Mother’s testimony and the testimony of
        witnesses at final hearing. Mother’s failure to cooperate with
        discovery simply continues Mother’s course of action to obstruct
        and interfere with this Court’s ability to undertake its lawful
        duties.
        47. The parties own no real property and all personal property
        has already been divided and distributed between the parties.
        There are no marital debts or liabilities. The marital estate has
        no value.
        48. Father is currently employed with Ivy Tech earning
        [$]9.42 per hour. For the purposes of child support calculation,
        the Court will impute Father’s income at minimum wage for a 40
        hour work week, equally $290 per week. Mother’s employment
        is unknown and the Court imputes minimum wage income for
        Mother, for a weekly income of $290. Beginning in October
        2011, Mother began receiving child support payments that were
        directly withheld from Father’s social security disability benefits.
        Mother erroneously received double payments, as both Indiana
        and Florida withheld payments. This Court had previously
        ordered Mother to terminate the Florida support orders to avoid
        the double payments. Mother knowingly and intentionally failed
        to do so. Mother received the sum of $7,488.00 in erroneous
        child support payments. Father is entitled to reimbursement
        from Mother for the overpayments.




Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 10 of 27
        50. Father has incurred attorney’s fees in the sum of
        $32,564.21 since the Preliminary Order was issued on March 7,
        2012.
        51. Any finding of fact more appropriately deemed a
        conclusion of law shall be considered as such.
                                 C.       Conclusions of Law
        52.     This Court has subject matter jurisdiction over this matter.
        53.     This Court has personal jurisdiction over the parties.
        54. Under the provisions of the Indiana Uniform Child
        Custody Jurisdiction Act ([“the Act”]), Indiana is the “home
        state” of the children and the parties. I.C. 31-21-2-8. Mother,
        Father and [S.F.] (as [C.F.] was not yet born) all lived in Indiana
        for a least six (6) consecutive months before the initiation of this
        action. Florida cannot meet the definition of “home state” as
        Father never resided in Florida and Mother and the children had
        not lived in Florida for 6 consecutive months prior to Mother
        filing her action in Florida.
        55. Pursuant to I.C. 31-21-5-1, Indiana is the only home state,
        and this Court had jurisdiction to make its rulings concerning
        child custody. I.C. 31-21-5-l(a)(l). Florida cannot meet the
        jurisdictional requirements of I.C. 31-21-5-1 and therefore cannot
        be said to have asserted jurisdiction over custody matters
        “substantially in conformity with this article”, as required by I.C.
        31-21-5-6. Therefore, even if the Florida Court first issued
        rulings on custody matters, it did not have jurisdiction in
        substantial conformity with the [“the Act”] and therefore this
        Court did not have to cede to Florida’s jurisdiction over custody
        matters. Nevertheless, the Florida Court ultimately ceded and
        relinquished jurisdiction to this Court in its September 26, 2013
        order.
        56. The Court shall determine custody and enter a custody
        and parenting time order in accordance with the best interests of
        the child, as established in I.C. §31-17-2-8. The Court shall
        consider all relevant factors, including but not limited to:

Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 11 of 27
            a. The age and sex of the child.
            b. The wishes of the child’s parents.
            c. The interaction and interrelationship of the child with:
                i. The child’s parents
                ii. The child’s siblings
                iii. Any other person who may significantly affect the
                child’s best interests
            d. The child’s adjustment to the child’s:
                i. Home
                ii. School
                iii. Community
            e. The mental and physical health of all individuals involved.
            f. Evidence of a pattern of domestic or family violence by
            either parent.
        57. Based upon the above factors, it is in the best interests of
        the minor children that father shall have sole legal and physical
        custody of the minor children.
        58. Mother’s actions in alienating the children from Father
        have had a detrimental impact on the children’s mental health.
        Father is now physically and mentally healthy, stable, and best
        able to provide for the care and needs of the children. Father has
        the support of his mother, Donna Funk, and his sister. Mother’s
        disregard of this Court’s orders and unilateral action to terminate
        Father’s relationship with the children demonstrate instability
        and irrational action. The Court can only conclude that Mother
        presents a threat to the emotional health of the children.
        59. Based upon Mother’s instability, her irrational actions, her
        status as a fugitive from justice, and the risk that Mother may
        abscond with the children, Mother’s parenting time with the
        minor children shall be supervised. The specific terms and
        conditions of Mother’s supervised parenting time shall be
        established once the children are returned to Father. Until such

Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 12 of 27
        time as the children are returned to Father, Mother’s parenting
        time shall be suspended.
        60. Father’s mother, Donna Funk, shall be the substitute
        custodian of the minor children pursuant to I.C. 31-17-2-8.
        61. Mother shall pay child support in the sum of $77.00 per
        week. The Court’s calculation of child support pursuant to the
        attached Child Support Worksheet is incorporated herein.
        Uninsured medical expenses shall be paid pursuant to the 6%
        rule. Father shall pay the first $477 of uninsured medical
        expenses incurred on behalf of the minor children on an annual
        basis (to be prorated in this year), with Father paying 50%
        thereafter and Mother paying 50% thereafter. This child support
        order shall be effective upon the return of the children to Father.
        62. Each party shall retain any and all personal property in
        their possession. Each party shall pay any and all debts or
        liabilities incurred in their own name. There is no marital debt.
        There is no real property. The parties provided the Court with
        no values as to their property, and therefore the Court deems the
        division of property to be equal pursuant to I.C. 31-15-7-5.
        63. Mother is in contempt for her failure to abide by this
        Court’s orders to return the children to Indiana, provide Father’s
        parenting time, provide Father Skype and telephone
        communication, failure to provide a timely drug screen, failure to
        provide her address and/or whereabouts, and failure to terminate
        the Florida child support withholding order and reimburse Father
        for the overpayments. Based upon Mother’s contempt,
        continued efforts to violate and avoid complying with this
        Court’s orders, and discovery violations, Father is entitled to
        reimbursement of his attorney’s fees in the sum of $32,564.21.
        64. Father is entitled to reimbursement from Mother for
        overpayments of child support in the sum of $7,488.00.
        65. The parties’ marriage has suffered an irretrievable
        breakdown and should be dissolved.



Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 13 of 27
        66. Any conclusion of law more appropriately deemed a
        finding of fact shall be considered as such.
                  D.      Decree of Dissolution, Judgment and Order
        67. The Court’s findings of fact and conclusions of law herein
        are made on order of this Court.
        68.     The parties’ marriage is hereby dissolved.
        69. Father shall have sole legal and physical custody of the
        minor children.
        70. Mother’s parenting time shall be suspended until the
        children are returned to Father and then shall be supervised
        thereafter, with the specific terms to be determined by the Court
        once the children are returned.
        71. Father’s mother, Donna Funk, shall be the substitute
        custodian of the minor children pursuant to I.C. 31-17-2-8.
        72. Mother shall pay child support in the sum of $77.00 per
        week. The Court’s calculation of child support pursuant to the
        attached Child Support Worksheet is incorporated herein.
        Uninsured medical expenses shall be paid pursuant to the 6%
        rule. Father shall pay the first $477 of uninsured medical
        expenses incurred on behalf of the minor children on an annual
        basis (to be prorated in this year), with Father paying 50%
        thereafter and Mother paying 50% thereafter. This child support
        order shall be effective upon the return of the children to Father.
        Mother shall pay child support to the Morgan County Clerk and
        mail any payments to the INSCCU at P.O. Box 7130,
        Indianapolis, IN 46207.
        73. Each party shall retain any and all personal property in
        their possession. Each party shall pay any and all debts or
        liabilities incurred in their own name.
        74. A judgment in the sum of $7,488.00 is entered in favor of
        Father and against Mother for reimbursement of child support
        overpayments.



Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 14 of 27
                75. A judgment in the sum of $32,564.21 is entered in favor of
                Father and against Mother for reimbursement of Father’s
                attorney’s fees.
                78.[2] The writ of attachment previously issued in this matter
                shall remain in full force and effect.
                79. The parties are ordered to perform all acts necessary to
                carry out and implement the terms of this Order.
      Appellant’s App. pp. 29-43 (footnotes omitted).

[5]   Additionally, the following facts specifically relate to Mother’s attempts to have

      the issues of custody, support, and parenting time transferred to the Florida

      court system and her attempts to have the failure of those attempts overturned.

      On October 25, 2012, the trial court denied Mother’s motion to cede the issues

      of custody, support, and parenting time to the Florida Court and certified the

      issue for interlocutory appeal. On April 5, 2013, in cause number 55A01-1303-

      DR-90, this court declined to accept jurisdiction of Mother’s interlocutory

      appeal. Also on April 5, 2013, this court ruled that Mother had failed to show

      cause why her appeal in cause number 55A01-1209-DR-428 should not be

      dismissed, and ordered the appeal dismissed with prejudice. In that cause

      number, Mother was challenging the trial court’s grant of a permanent

      injunction and writ of bodily attachment in favor of Father.




      2
          The trial court’s order does not contain paragraphs designated 76 or 77.


      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 15 of 27
[6]   On September 27, 2013, Mother petitioned the Indiana Supreme Court for an

      emergency writ of mandamus. On October 1, 2013, the Indiana Supreme

      Court rejected Mother’s request for a writ of mandamus :


              [Mother], by counsel, has filed a “Petition for Emergency Writ of
              Mandamus” (“Petition”) and accompanying application papers,
              seeking relief under the Rules of Procedure for Original Actions.
              The Petition and other application papers are procedurally
              deficient in many respects. Nevertheless, the Court elects to look
              past these procedural defects and address the Petition on its
              merits.
              The Petition and other application papers fail to show that the
              [Morgan Superior Court 1, et al.] have exceeded their
              jurisdiction, that the writ has been sought expeditiously after the
              jurisdiction of the [Morgan Superior Court 1, et al.] became an
              issue, and/or that the remedy by appeal would be wholly
              inadequate. Ind. Original Action Rule 3(A). Because the
              Petition seeks an unquestionably inappropriate remedy under the
              rules and law governing writs of mandamus, this original action
              is DISMISSED.
      Appellant’s App. p. 178.


[7]   Mother contends that the trial court erred in failing to give full faith and credit

      to the Florida Court’s “initial custody order” before that court ceded

      jurisdiction to the trial court; in granting Donna custody of the Children in

      2012; and in awarding sole custody of the Children to Father. Father argues

      that the question of jurisdiction over the custody issue has already been

      determined on the merits and may not now be reviewed, the trial court correctly

      determined that it has jurisdiction over the custody issue, and the trial court did

      not abuse its discretion in awarding sole custody of the Children to Father.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 16 of 27
[8]   We choose to frame and address the issues as follows:


              I.      whether the res judicata and/or law-of-the-case doctrines
                      bar consideration of the issue of jurisdiction;
              II.     whether the trial court erred in failing to give full faith and
                      credit to the Florida Court’s “initial custody order” before
                      that court ceded jurisdiction to the trial court;
              III.    whether the trial court erred in granting Donna custody of
                      the Children in 2012; and
              IV.     whether the trial court erred in awarding sole custody of
                      the Children to Father.

                                 Discussion and Decision
                             I. Res Judicata/Law of the Case
[9]   Father contends that reconsideration of the question of jurisdiction over the

      custody issue is barred by the doctrines of res judicata and/or law-of-the-case.

      Father essentially argues that the issue has already been decided on the merits

      by this court and the Indiana Supreme Court. Mother contends that the

      previous rulings were not on the merits and that consideration of the

      jurisdiction issue is not foreclosed.


              The doctrines of law-of-the-case and res judicata both operate to
              preclude litigation regarding matters that have already been
              litigated. Mutchman v. Consolidation Coal Co., 666 N.E.2d 461,
              464 (Ind. Ct. App. 1996). Specifically, the law-of-the-case
              doctrine provides that an appellate court’s determination of a
              legal issue binds both the trial court and the court on appeal in
              any subsequent appeal involving the same case and substantially
              the same facts. Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985).
              The law-of-the-case doctrine stands for the proposition that:

      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 17 of 27
             [F]acts established at one stage of a proceeding, which
             were part of an issue on which judgment was entered
             and appeal taken, are unalterably and finally
             established as part of the law of the case and may not
             be relitigated at a subsequent stage.
          Platt v. State, 664 N.E.2d 357, 361 (Ind. Ct. App. 1996) (citations
          omitted). The application of this doctrine is discretionary, and
          despite its availability, courts retain the power to revisit their
          prior decisions or those of a coordinate court in any circumstance,
          “although as a rule courts should be loathe [sp.] to do so in the
          absence of extraordinary circumstances.” Id. The term
          “coordinate,” according to the American Heritage dictionary
          means “of equal rank, authority, or importance with another.”
          Webster’s Third New International Dictionary 502 (2002); see
          also Turner v. State, 751 N.E.2d 726, 729 (Ind. Ct. App. 2001).
          Similarly, the doctrine of res judicata prevents the repetitious
          litigation of that which is essentially the same dispute. Scott v.
          Scott, 668 N.E.2d 691, 699 (Ind. Ct. App. 1996). The principle of
          res judicata is divided into two branches: claim preclusion and
          issue preclusion. Eichenberger v. Eichenberger, 743 N.E.2d 370, 374
          (Ind. Ct. App. 2001). Claim preclusion applies where a final
          judgment on the merits has been rendered which acts as a
          complete bar to a subsequent action on the same issue or claim
          between those parties and their privies. Id. Issue preclusion, also
          referred to as collateral estoppel, bars the subsequent relitigation
          of the same fact or issue where that fact or issue was necessarily
          adjudicated in a former suit and the same fact or issue is
          presented in a subsequent action. Id. Where issue preclusion or
          collateral estoppel applies, the previous judgment is conclusive
          only as to those issues actually litigated and determined therein.
          Id.
In re Adoption of Baby W., 796 N.E.2d 364, 372-73 (Ind. Ct. App. 2003), trans.

denied.



Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 18 of 27
[10]   Father correctly observes that “[i]t is generally recognized that a dismissal with

       prejudice is a dismissal on the merits.” MBNA Am. Bank, N.A. v. Kay, 888

       N.E.2d 288, 292 (Ind. Ct. App. 2008) (citing Midway Ford Truck Center, Inc. v.

       Gilmore, 415 N.E.2d 134, 136 (Ind. Ct. App. 1981)). “As such it is conclusive of

       the rights of the parties and res judicata as to the questions which might have

       been litigated.” Id. (citing Midway Ford Truck Center, 415 N.E.2d at 136).


[11]   Father points to this court’s April 5, 2013, dismissal with prejudice of Mother’s

       appeal from the trial court’s denial of her motion to set aside Father’s

       permanent injunction and the writ of bodily attachment. There is no

       indication, however, that Mother’s motion had anything to do with the

       question of which state had jurisdiction over the custody issue. Consequently,

       this court’s dismissal on April 5, 2013, has no effect on our ability to address the

       jurisdiction issue.


[12]   Father also contends that the Indiana Supreme Court’s denial of Mother’s

       petition for a writ of mandamus precludes further consideration of the

       jurisdiction issue. We disagree. In denying Mother’s petition, the Indiana

       Supreme Court concluded that “[b]ecause the Petition seeks an unquestionably

       inappropriate remedy under the rules and law governing writs of mandamus,

       this original action is DISMISSED.” Appellant’s App. p. 178. It is clear that

       the Indiana Supreme Court’s dismissal was based on Mother’s request for an

       inappropriate remedy and therefore did not touch on the merits of her

       underlying claim. Father has failed to establish that the doctrines of res judicata

       and/or law-of-the-case bar consideration of the jurisdiction issue. That said,

       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 19 of 27
       even if we had concluded that res judicata and/or law-of-the-case did apply to

       the question of jurisdiction, in the interests of leaving no doubt and finality, we

       would exercise our discretion to address the question on the merits. In re

       Adoption of Baby W., 796 N.E.2d at 372-73.


                               II. Jurisdiction Over Custody
[13]   Mother contends that the trial court improperly failed to give full faith and

       credit to the Florida Court’s rulings issued prior to September 26, 2013, the date

       on which the Florida Court ceded jurisdiction to the trial court pursuant to the

       Act. Mother also contends that the trial court violated her due process rights by

       failing to recognize the Florida Court’s jurisdiction and granting physical

       custody of the Children to Donna on July 29, 2012. While Mother does not

       challenge the Florida Court’s ultimate September 26, 2013, ceding of

       jurisdiction to the trial court, she argues that the trial court’s improper exercise

       of jurisdiction put her at such a disadvantage that any hope for a fair final

       hearing was “obliterated.” Appellant’s Br. p. 32. Father contends that Indiana

       always had jurisdiction over the custody issue pursuant to the Act and therefore

       properly exercised and retained exclusive and continuing jurisdiction when it

       entered all of its orders. To the extent that Florida had jurisdiction over any

       aspect of this case, Father argues, it was emergency jurisdiction that was

       temporary in nature.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 20 of 27
[14]   The Act provides that an Indiana court has jurisdiction to make an initial

       custody determination if Indiana is the home state. Indiana Code section 31-

       21-5-1 provides, in part, as follows:


               (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 one (1) of the following applies:
               (1) Indiana is the home state of the child on the date of the
               commencement of the proceeding or was the home state of the
               child within six (6) months before the commencement of the
               proceeding, and the child is absent from Indiana but a parent or
               person acting as a parent continues to live in Indiana.
               (2) A court of another state does not have jurisdiction under
               subdivision (1) or a court of the home state of the child has
               declined to exercise jurisdiction on the ground that Indiana is the
               more appropriate forum under section 8 or 9 of this chapter, and:
                   (A) the child and the child’s parents, or the child and at least
                   one (1) parent or person acting as a parent, have a significant
                   connection with Indiana other than mere physical presence;
                   and
                   (B) substantial evidence is available in Indiana concerning the
                   child’s care, protection, training, and personal relationships.
               (3) All courts having jurisdiction under subdivision (1) or (2)
               have declined to exercise jurisdiction on the ground that an
               Indiana court is the more appropriate forum to determine the
               custody of the child under section 8 or 9 of this chapter.
               (4) No court of any other state would have jurisdiction under the
               criteria specified in subdivision (1), (2), or (3).
       Mother’s argument is that the trial court exceeded its authority under the Act

       when it issued rulings regarding custody of the Children when the Florida

       Court had previously issued an emergency protective order. This argument


       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 21 of 27
       depends on Florida having “home state” status pursuant to Indiana Code

       section 32-21-5-1(a).


               “Home state” means the state in which a child lived with:
                   (1) a parent; or
                   (2) a person acting as a parent;
               for at least six (6) consecutive months immediately before the
               commencement of a child custody proceeding. In the case of a
               child less than six (6) months of age, the term means the state in
               which the child lived since birth with a parent or person acting as
               a parent.
       Ind. Code §31-21-2-8. While this statute does not treat both of the Children the

       same, we ultimately reach the same result as to each, albeit by different routes.


                                                    A. S.F.
[15]   As previously mentioned, S.F. was born on November 28, 2006. Even if we

       accept Mother’s contention that she moved to Florida in late October of 2010

       and not in early 2011 as the trial court found, S.F. and Mother had not been in

       Florida for the required six consecutive months when Mother filed her petition

       in Florida on March 7, 2011, or when Father filed his dissolution petition in the

       Indiana trial court on March 16. Therefore, Indiana is S.F.’s home state for

       purposes of the Act and Florida cannot be. Insofar as S.F. is concerned,

       Mother has established no error.


                                                    B. C.F.
[16]   Also as previously mentioned, C.F. was born on June 9, 2011, in Florida,

       which was after Father commenced dissolution proceedings in Indiana on

       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 22 of 27
       March 16, 2011. Pursuant to the Act, then, Indiana is not C.F.’s home state,

       and Florida, upon C.F.’s birth, became C.F.’s home state. By this time, Mother

       had already petitioned for an injunction for protection in Florida which

       preceded Father’s dissolution action. (Appellant’s App. 100-10). This means

       that C.F. had no “home state” when Mother filed her petition in Florida, which

       dealt, in part, with custody.


[17]   Stewart v. Vulliet, 888 N.E.2d 761 (Ind. 2008), presents similar facts and an

       analysis we find instructive. In that case, a pregnant mother filed dissolution

       and custody proceedings in Indiana, moved to Washington State, gave birth,

       and later attempted to have the proceedings transferred to Washington,

       asserting inconvenient forum. Id. at 763-64. The trial court ceded jurisdiction

       to Washington, and Father appealed. Id. at 764. The Indiana Supreme Court

       affirmed the judgment of the trial court, concluding that “[u]pon the birth of

       A.S., Washington became her home state.” Id. at 765. “Thereafter,

       Washington had concurrent subject matter jurisdiction to determine A.S.’s

       custody.” Id. at 765-66. Here, Florida properly exercised jurisdiction over

       C.F.’s custody because Florida is C.F.’s home state by birth, with Indiana

       having concurrent jurisdiction.


[18]   Moreover, pursuant to the Act,


               (a) Except as otherwise provided in section 4 of this chapter, an
               Indiana court may not exercise its jurisdiction under this article
               if, at the time of the commencement of the proceeding, a
               proceeding concerning the custody of the child has been
               commenced in a court of another state having jurisdiction

       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 23 of 27
               substantially in conformity with this article, unless the
               proceeding:
                   (1) has been terminated; or
                   (2) is stayed by the court of the other state because an Indiana
                   court is a more convenient forum under section 8 of this
                   chapter.
       So, at least as C.F. is concerned, it would appear that the trial court likely

       overstepped its bounds until jurisdiction was ceded to it in September of 2013.


[19]   That said, we conclude that Mother had failed to show any prejudice in this

       regard. “It is well settled that when an error did not affect the substantial rights

       of the complaining party, such error will be considered harmless and not be

       grounds for reversal.” Cornett v. Cornett, 412 N.E.2d 1232, 1236 (Ind. Ct. App.

       1980) (citation omitted). Mother’s claim of prejudice is essentially that she has

       been prevented from appearing at proceedings in Indiana because she is now

       the subject of a writ of bodily attachment and criminal charges for failing to

       abide by the trial court’s allegedly illegal orders. As we have concluded,

       however, the trial court has always had full authority to act where S.F. is

       concerned. Even if one assumes that an acceptable response to court orders

       issued without proper authority is to ignore them and openly defy the trial court

       (as Mother has done consistently for several years), Mother has no such excuse

       where S.F. is concerned. Whatever prejudice Mother has experienced seems to

       have been caused entirely by her own actions. Mother has failed to establish

       that she was unfairly prejudiced by any order of the trial court, even if

       erroneous.



       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 24 of 27
             III. Award of Custody to Donna on July 27, 2012
[20]   Mother also contends that the trial court violated her due process rights by

       failing to recognize the Florida Court’s jurisdiction and granting custody of the

       Children to Donna on July 29, 2012. As with Mother’s previous argument, we

       fail to see how she was prejudiced by the trial court’s award of custody to

       Donna, even if one assumes that the award was improper. In the end, Mother’s

       consistent refusal to abide by the trial court’s orders included this one; Donna

       has not, in fact, ever had custody of the Children because Mother has refused to

       deliver them as ordered.


[21]   Moreover, the 2012 order granting custody to Donna has been superseded by

       the decree of dissolution, granting sole physical and legal custody to Father. At

       best, Mother’s claim is moot. “An issue becomes moot when the parties lack a

       legally cognizable interest in the outcome of its resolution.” Bremen Pub. Sch. v.

       Varab, 496 N.E.2d 125, 127 (Ind. Ct. App. 1986). “When the principle

       questions in issue have ceased to be matters of real controversy between the

       parties, when the court is unable to render effective relief upon an issue, and

       where absolutely no change in the status quo will result, the issues are deemed

       moot and the court will not retain jurisdiction to determine them.” Id. The

       2012 order granting custody to Donna, even if erroneous, is no longer a matter

       of real controversy between Mother and Father.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 25 of 27
                              II. Award of Custody to Father
[22]   Mother contends that the trial court abused its discretion in awarding physical

       and legal custody of the Children to Father. Specifically, Mother argues that

       the trial court’s findings are not specific enough to allow meaningful review of

       its conclusion that Father is now physically and mentally healthy and stable.

               A child custody determination falls within the sound discretion
               of the trial court, and its determination will not be disturbed on
               appeal absent a showing of abuse of discretion. In Re
               Guardianship of R.B., 619 N.E.2d 952, 955 (Ind. Ct. App. 1993).
               We are reluctant to reverse a trial court’s determination
               concerning child custody unless the determination is clearly
               erroneous and contrary to the logic and effect of the evidence. Id.
               We do not reweigh evidence nor reassess witness credibility, and
               we consider only the evidence which supports the trial court’s
               decision. Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App.
               1996).
       Spencer v. Spencer, 684 N.E.2d 500, 501 (Ind. Ct. App. 1997).


[23]   We conclude that the record contains sufficient evidence to sustain the trial

       court’s conclusion regarding Father’s health. Father presented evidence that

       although he sought treatment for his mental health issues at Centerstone, he

       completed his treatment with Centerstone at the end of 2012. Father testified

       that he is no longer prescribed medication for mental health issues and last took

       Celexa and Cymbalta in 2013. Father testified that he has not had a seizure or

       experienced dizziness for a year and a half, each of which were side effects of

       his medication at the time, and that he has not taken seizure medications since

       March of 2014. Father testified that since 2011, he has lost 100 pounds and is

       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 26 of 27
       no longer receiving Social Security Disability benefits. Mother argues that the

       trial court should not have been able to rely solely on Father’s “self-serving

       testimony regarding his mental health[,]” Appellant’s Br. p. 39, and that it erred

       by not ordering a more comprehensive mental health evaluation. Mother,

       however, is simply asking us to reweigh the evidence, which we will not do. See

       id.


[24]   Finally, Mother argues that the trial court abused its discretion in failing to give

       enough weight to what she refers to as “conclusive evidence of a pattern of

       Father committing domestic and family violence[.]” Appellant’s Br. p. 40.

       Paragraph 33 of the trial court’s dissolution order reads, in part, “Even though

       Mother has repeatedly accused Father of incidents of domestic violence during

       their marriage, the Court cannot conclude that Father did engage in domestic

       violence or that Father presents a current threat to the health, safety, and

       welfare of the minor children.” Appellant’s App. p. 34. Whatever evidence

       Mother presented concerning alleged domestic and family violence, the trial

       court determined was not credible. Again, Mother’s argument is nothing more

       than an invitation to reweigh the evidence, which we will not do.


[25]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016   Page 27 of 27
