MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                          Jun 30 2016, 7:03 am
this Memorandum Decision shall not be                                CLERK
regarded as precedent or cited before any                        Indiana Supreme Court
                                                                    Court of Appeals
court except for the purpose of establishing                          and Tax Court

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


ATTORNEY FOR APPELLANT
Nancy L. Green
Camden & Meridew, P.C.
Fishers, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of:                        June 30, 2016
L.M.E.                                                    Court of Appeals Case No.
                                                          49A02-1512-JP-2075
Gregory A. Edwards,                                       Appeal from the Marion Circuit
Appellant-Respondent,                                     Court Paternity Division
                                                          The Honorable Sheryl Lynch,
        v.                                                Judge

Toni Kelly,                                               Trial Court Cause No.
                                                          49C01-0709-JP-39810
Appellee-Petitioner.




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016     Page 1 of 5
                                           Case Summary
[1]   Gregory Edwards (“Father”) and Toni Kelly (“Mother”) appeared at a

      parenting time hearing and the trial court issued an order regarding parenting

      time and child support, but declined to address Father’s oral motion regarding

      custody modification. Father appeals, presenting a single re-stated issue of

      whether the trial court abused its discretion by deferring consideration of

      custody and directing Father to file a petition for modification. We affirm.



                            Facts and Procedural History
[2]   On September 12, 2014, Mother filed a petition to modify Father’s parenting

      time. After an initial hearing, the parents mediated their dispute. They

      appeared at a final hearing on November 5, 2015. Mother advised the trial

      court that she was agreeable with the mediator’s recommendation, specifically,

      that Father should have parenting time consistent with the Indiana Parenting

      Time Guidelines (“Guidelines”).


[3]   Father, by counsel, responded that he was not in agreement with that

      recommendation. Counsel stated that Father now sought joint custody. The

      trial court, noting the lack of a custody modification petition, advised the

      parties that a petition was needed “for us to be prepared to talk about that …

      everyone has to be on notice for what everyone is requesting.” (Tr. at 5-6.)




      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016   Page 2 of 5
[4]   The trial court issued an order that Father have parenting time consistent with

      the Guidelines. This appeal ensued.1



                                   Discussion and Decision
[5]   Father asserts that the trial court was not restricted to hearing evidence on

      parenting time, and should have allowed him to proceed with his evidence in

      support of custody modification. A trial court has wide latitude in determining

      what is in the best interests of the child or children involved. Akiwumi v.

      Akiwumi, 23 N.E.3d 734, 739 (Ind. Ct. App. 2014). We review its decisions in

      family law matters for an abuse of discretion. Daisy v. Sharp, 901 N.E.2d 627,

      629 (Ind. Ct. App. 2009). A trial court abuses its discretion when its decision is

      against the logic and effect of the facts and circumstances before the court or is

      contrary to the law. Id.


[6]   Father observes that the best interests of the child is always paramount, and he

      directs our attention to two cases in which the trial court ordered relief arguably

      broader than that contemplated by the pleadings.


[7]   In re the Paternity of Snyder, 26 N.E.3d 996 (Ind. Ct. App. 2015), was an appeal

      from an order maintaining the status quo of therapeutic visitation for one hour




      1
        Mother has not filed an appellee’s brief. Thus, we review for prima facie error, that is, error “at first sight,
      on first appearance, or on the face of it.” Hamiter v. Torrence, 717 N.E.2d 1249, 1252. Still, we are obligated
      to correctly apply the law to the facts in the record in order to determine whether reversal is required. Mikel v.
      Johnson, 907 N.E.2d 547, 550 n.3 (Ind. Ct. App. 2009).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016                  Page 3 of 5
      weekly, allowing the father communication via Skype, and denying the father’s

      requests to change therapists and tell the child he is her biological parent. The

      order was affirmed in part and reversed in part on appeal. Id. at 997. Legal

      proceedings involving the parents had commenced when the mother obtained a

      protective order against the father. See id. One year later, the father sought to

      establish his paternity and the trial court ultimately ruled on several matters,

      including child support, a request for a name change, tax exemptions, parenting

      time, therapy, and parenting time restrictions.


[8]   Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003), involved a case where the

      father had asked the trial court to find the mother in contempt for withholding

      child visitation. After a hearing, at which the mother defended the contempt

      allegation by alleging the father had sexually abused their child, the juvenile

      court suspended visitation pending a parental evaluation. Id. at 615. A panel of

      this Court reversed the order for lack of a specific finding to support a parenting

      time restriction. Id. at 618.


[9]   It is unclear how these decisions support Father’s contention that the trial court

      erred here. We agree with Father that the child’s interests are paramount and

      that a trial court addressing a family law matter may be asked to consider

      evidence not directly implicated by notice pleading.2 Undoubtedly, at times a




      2
       Under notice pleading, consistent with Indiana Trial Rule 8(A), a plaintiff essentially need only plead the
      operative facts involved in the litigation. Grzan v. Charter Hosp. of N.W. Ind., 702 N.E.2d 786, 794 (Ind. Ct.
      App. 1998). Whether a complaint sufficiently pleads a certain claim turns on whether the opposing party has
      been sufficiently notified so as to be prepared to meet the claim. Id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2075 | June 30, 2016               Page 4 of 5
       trial court will find that expansion of the issues identified in pleadings or

       motions is appropriate to immediately address the best interests of a child.

       However, the trial court should not, as a matter of course, conduct the

       proceedings in a manner that deprives a parent of notice and opportunity to

       respond. As we observed in reversing a trial court’s sua sponte modification of

       physical custody in Bailey v. Bailey, 7 N.E.3d 340, 345 (Ind. Ct. App. 2014):


               The parties never discussed or argued whether there had been a
               change of circumstances related to any of the statutory factors
               warranting a custody modification or whether there was a change
               in the children’s best interests. Mother had no warning that she
               had to make an argument that such circumstances were lacking
               or that a change was not in the children’s best interests or that
               she had to present evidence on those issues.


[10]   Here, the trial court did not deprive Father of the opportunity to seek custody

       modification. Rather, the trial court directed Father to file a petition, such that

       Mother would be afforded notice and an opportunity to prepare her evidence.

       Indeed, it would have been much more efficient for Father to simply file a

       modification petition than to perfect an appeal. He has demonstrated no abuse

       of discretion by the trial court.


[11]   Affirmed.


       Bradford, J., and Altice, J., concur.




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