MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Jan 13 2017, 10:07 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Brian S. Moore                                           Trenton W. Gill
Indianapolis, Indiana                                    Bailey L. Box
                                                         Reminger Co., LPA
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian S. Moore,                                          January 13, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A04-1605-CT-955
        v.                                               Appeal from the Marion Superior
                                                         Court
Del Anderson,                                            The Honorable James A. Joven,
Appellee-Defendant.                                      Judge
                                                         The Honorable Kimberly Dean
                                                         Mattingly, Magistrate
                                                         The Honorable Shannon L.
                                                         Logsdon, Commissioner
                                                         Trial Court Cause No.
                                                         49D13-1502-CT-3909



Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017    Page 1 of 11
                                          Case Summary
[1]   Pro-se Appellant Brian S. Moore (“Father”) appeals the denial of his motion to

      correct error, which challenged a grant of summary judgment in favor of

      Appellee-Guardian Ad Litem Del Anderson (“the GAL”) upon Father’s claim

      of intentional infliction of emotional distress arising from the GAL’s alleged

      perjury in custody modification proceedings involving Father’s children with

      Kristy Moore (“Mother”). Father presents the sole restated and consolidated

      issue of whether summary judgment was improvidently granted. We affirm.



                            Facts and Procedural History
[2]   Father and Mother were divorced in 2009 and agreed to share the legal and

      physical custody of their children, with Father having somewhat less than equal

      parenting time. In 2010, Mother filed a petition to modify custody, seeking sole

      legal and physical custody. Father also filed a petition for modification,

      requesting equal parenting time, a modified child support order based upon

      equal parenting time, an order that the children remain in a private school, and

      a continuation of an agreed-upon restriction of the maternal grandmother’s

      visitation with the children.


[3]   The parents appeared for an evidentiary hearing on September 19, 2011 and

      each testified. At the conclusion of this testimony, the trial court found

      insufficient evidence for an immediate modification but expressed concern




      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 2 of 11
      about parental inability to communicate. The hearing was continued to permit

      the appointment of a GAL.


[4]   On August 22, 2012, an interim hearing was conducted at which Mother

      testified that she had enrolled the children in a public school in Pendleton. The

      GAL testified and opined that this was an appropriate change of schools. The

      trial court found Mother in contempt for having made the school change

      without court authorization, but ordered that the children would remain in

      Pendleton Elementary School. Because of the distance between the parental

      homes, this necessitated a modification of parenting time. Father was to have

      the children each weekend and alternating Mondays.


[5]   The previously continued evidentiary hearing, which began in September 2011,

      recommenced on February 5, 2013, after a custody evaluation and the GAL’s

      report had been filed with the court. The custody evaluator recommended that

      Mother have custody with Father having parenting time consistent with the

      Indiana Parenting Time Guidelines. The GAL, in his report, made the same

      recommendation.


[6]   The hearing was continued and the trial judge sua sponte recused herself. The

      final day of the modification hearing was April 5, 2013, with a special judge

      presiding. Father proposed that the parenting time arrangement continue

      unchanged, with the exception of his giving Mother one weekend per month

      with children.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 3 of 11
[7]   During the custody hearing, Father took issue with three statements in the GAL

      report. He strenuously challenged the GAL’s statements that Father had

      maligned attorneys and judges, that Father had cried during an interview, and

      that Father’s conduct had prompted a lockdown at Pendleton Elementary

      School. Father presented testimony that local law enforcement and school

      administration did not characterize the heightened security measures taken at

      the school as a lockdown. He also submitted into evidence a recording of his

      interview with the GAL and elicited the GAL’s admission that Father was not

      heard on the recording to malign judges and attorneys. The GAL re-iterated

      during cross-examination that Father had cried. Father moved, unsuccessfully,

      to exclude the GAL report on grounds that it contained substantial

      misrepresentations.


[8]   On June 6, 2013, the trial court issued an order denying Mother’s request for

      sole physical and legal custody of the children. Parenting time was modified to

      provide that Father would have parenting time each weekend during the school

      year, except one weekend per month. Father was to have mid-week parenting

      time of no more than four hours. The order also provided that the maternal

      grandmother could have unrestricted contact with the children and Father was

      not to attend the children’s medical appointments.


[9]   Father filed a motion to correct error, which was denied. He then appealed.

      See Moore v. Moore, No. 49A04-1308-DR-401 (Ind. Ct. App. May 9, 2014). The

      Court remanded the matter to the trial court for a recalculation of Father’s child

      support obligation. With respect to the parenting time modification,

      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 4 of 11
       grandparent access, and medical appointment restriction, the Court affirmed

       the trial court’s order. Slip op. at 5-6. Father sought transfer to the Indiana

       Supreme Court, which was denied on November 20, 2014.


[10]   On February 5, 2015, Father filed a complaint against the GAL, Child

       Advocates, Inc., and attorney Cynthia Dean (“Dean”). His claim against the

       GAL was one of intentional infliction of emotional distress;1 he asserted that

       the GAL had committed perjury in retaliation for Father’s filing a disciplinary

       complaint against Dean. According to Father’s complaint, his overnights with

       his children had been reduced from 182 to 110 per year, increasing his child

       support obligation. Allegedly, Father had expended over $4,300.00 to pay for

       transcripts and appellate filing fees and had lost work hours. He requested

       unspecified monetary damages.


[11]   On April 6, 2015, the defendants filed a motion for summary judgment. At the

       conclusion of a hearing conducted on May 11, 2015, summary judgment was

       granted in favor of Dean and Child Advocates, Inc. With regard to the claim

       against the GAL, the trial court concluded that Indiana Code Section 31-17-6-8,

       providing immunity to a GAL for professional conduct, does not immunize

       gross misconduct. The trial court reasoned that the allegation of perjury alleged




       1
        Although Father’s complaint is not a model of clarity, in open court he described his claim as one of
       “intentional infliction of emotional distress because they knew that I was self-employed.” (Tr. at 34.)

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017            Page 5 of 11
       gross misconduct and presented a factual issue not resolved by the sparse

       designated materials.


[12]   On September 11, 2015, the GAL filed a second motion for summary judgment

       and his designation of materials, including materials from the custody

       proceedings and appeal. At the hearing conducted on January 4, 2016, the

       GAL argued that the issue of his credibility had been determined in prior

       proceedings, specifically, the custody modification hearing and appeal. On

       February 22, 2016, the trial court granted summary judgment to the GAL on

       grounds of issue preclusion.2


[13]   Father filed a motion to correct error, which was denied. This appeal ensued.



                                     Discussion and Decision
[14]   Generally, we review a trial court’s ruling on a motion to correct error for an

       abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct.

       App. 2010), trans. denied. However, to the extent the issues raised on appeal are

       purely questions of law, our review is de novo. Id.




       2
         Issue preclusion, or collateral estoppel, bars subsequent re-litigation of the same fact or issue where that fact
       or issue was necessarily adjudicated in a former lawsuit and that same fact or issue is presented in a
       subsequent lawsuit, even if the second adjudication is on a different claim. National Wine & Spirits, Inc. v.
       Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012). There are three requirements for application: (1) a
       final judgment on the merits in a court of competent jurisdiction; (2) identity of the issues; and (3) the party to
       be estopped was a party or the privity of a party in the prior action. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017                Page 6 of 11
[15]   Here, the motion to correct error challenged a grant of summary judgment.

       Our supreme court has set out the applicable standard of review on summary

       judgment as follows:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of … the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[16]   Father has alleged that the GAL committed perjury when he “fabricated and

       provided false evidence in a written report,” and “fabricated and presented false
       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 7 of 11
       testimony in a hearing for a custody modification.” (App. at 28.) Specifically,

       in his written report, the GAL had used the term “lock-down” to characterize a

       heightened-security event at the children’s school – occasioned by Father’s

       warning to “be ready” because he claimed to be “coming back with force.”

       (Amended App. at 30.) Other witnesses denied that the heightened security

       measures – extra police patrol and school staffing at the door – amounted to a

       lock-down. Also, the GAL had claimed that Father had flowing tears, and had

       used such terms as “crooks, liars, thieves, or belly-crawlers” to describe lawyers

       and judges. (App. Vol. 3 at 34.) However, the derogatory references were not

       heard on Father’s recording of his interview with the GAL. According to

       Father, the rendering of demonstrably false testimony amounted to intentional

       infliction of emotional distress.


[17]   In Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991), our supreme court defined

       the tort of intentional infliction of emotional distress as conduct by “one who by

       extreme and outrageous conduct intentionally or recklessly causes severe

       emotional distress to another.” The intent to harm the plaintiff emotionally

       constitutes the basis for the tort, and it is found only where the conduct exceeds

       all bounds typically tolerated by a decent society and causes mental distress of a

       very serious kind. Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011).

       The elements of the tort are that the defendant: (1) engages in extreme and

       outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe

       emotional distress to another. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 8 of 11
[18]   In Bradley v. Hall, 720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999), a panel of this

       Court quoted Restatement (Second) of Torts § 46 cmt. D with approval:

               The cases thus far decided have found liability only where the
               defendant’s conduct has been extreme and outrageous. It has not
               been enough that the defendant has acted with an intent which is
               tortious or even criminal, or that he has intended to inflict
               emotional distress, or even that his conduct has been
               characterized by “malice,” or a degree of aggravation which
               would entitle the plaintiff to punitive damages for another tort.
               Liability has been found only where the conduct has been so
               outrageous in character, and so extreme in degree, as to go
               beyond all possible bounds of decency, and to be regarded as
               atrocious, and utterly intolerable in a civilized community.
               Generally, the case is one in which the recitation of the facts to
               an average member of the community would arouse his
               resentment against the actor, and lead him to exclaim,
               “Outrageous!”


[19]   In the appropriate case, the question of whether actions constitute “outrageous”

       behavior can be decided as a matter of law. Curry, 943 N.E.2d at 361. The

       instant matter – where the conduct at issue is the presentation of evidence in a

       courtroom where decorum was maintained and no witness was admonished –

       is such a case.


[20]   The designated materials indicate that Father urged the trial court to find that

       substantial misrepresentations were in the GAL report; we cannot say that the

       trial court entertained a specific allegation of willful perjury during the course of

       the custody proceedings. However, credibility determinations were necessitated

       as the GAL provided testimony and documentary evidence and those written


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 9 of 11
       and oral representations were vigorously challenged. Father presented

       witnesses to contradict the use of the term “lock-down.” He presented a

       recorded interview that did not include his use of derogatory language. The

       GAL was subjected to cross-examination on his report; he acknowledged the

       lack of recorded evidence of derogatory remarks and conceded that others did

       not find the term “lock-down” applicable. However, he did not retreat from his

       claims that there had been a heightened-security event, or that Father had cried

       and used derogatory language to describe lawyers and judges. Father asked

       that the trial court strike the GAL report for alleged substantial

       misrepresentations; the motion was denied.


[21]   In the face of conflicting evidence, the trial court exercised its role as fact-finder

       and accepted or rejected representations. Ultimately, Mother was granted some

       portion of the modification terms she sought. Father points to the absence of

       an explicit finding that the GAL’s testimony and report were credible and

       argues that the evidence may have been rejected. However, in the event that

       the GAL evidence was found lacking in credibility and not relied upon, Father

       would have suffered no harm. The modification order would have been

       produced independent of the GAL evidence.


[22]   Nonetheless, even assuming a lack of credibility on the part of a witness, this is

       not tantamount to extreme and outrageous behavior beyond the bounds of

       decency or to the gross misconduct exception to civil immunity contemplated

       by Indiana Code Section 31-17-6-8. Father has essentially launched a collateral

       attack upon the process leading to the modification order, as opposed to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 10 of 11
       addressing behavior beyond societal tolerance. The GAL is entitled to

       summary judgment upon the claim for intentional infliction of emotional

       distress.



                                               Conclusion
[23]   The trial court properly granted summary judgment in favor of the GAL.


[24]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017   Page 11 of 11
