                                                                               FILED
                                                                           Aug 22 2018, 9:36 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      APPELLANT PRO SE
      Crystal M. Powers
      Jacksonville, Florida



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Crystal M. Powers,                                         August 22, 2018
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 18A-DR-105
              v.                                                 Appeal from the Gibson Circuit
                                                                 Court
      Bryan A. Blunck,                                           The Honorable Jeffrey Fowler
      Appellee-Respondent                                        Meade, Judge
                                                                 Trial Court Cause No.
                                                                 26C01-1204-DR-68



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Crystal Powers (“Mother”) appeals the trial court’s denial of her motion to

      continue a custody-modification hearing. After the hearing, the court issued a

      written order in which it found Mother to be in default and granted sole legal

      custody and primary physical custody to Bryan Blunck (“Father”). Because


      Court of Appeals of Indiana | Opinion 18A-DR-105 | August 22, 2018                           Page 1 of 6
      Mother provided good cause for continuing the hearing and default is generally

      disfavored in custody disputes, we reverse and remand.



                               Facts and Procedural History
[2]   Mother and Father are the parents of a daughter, T.B. (“Child”). In March

      2012, Father was arrested and charged with multiple drug-related offenses.

      Because Father was incarcerated, the Gibson County Department of Child

      Services (DCS) placed Child in Mother’s custody. As a result, Mother and

      Father filed an agreed entry with the Gibson Circuit Court granting Mother full

      custody of Child; the agreed entry was approved by the court. Mother then

      moved to Florida with Child.


[3]   In April 2017, Father was no longer incarcerated, and Mother thought it was in

      Child’s best interests to live with Father. Mother drafted and signed a

      document that “grant[ed] guardianship” of Child to Father; Mother indicated

      that her intent was for T.B. “to live with [Father] in Indiana and for [Father] to

      gain joint legal custody as soon as possible.” Emergency Petition to Modify,

      Ex. B, In re T.B., No. 26C01-1204-DR-068 (Gibson Cir. Ct. Nov. 20, 2017).

      Child was then returned to Indiana. In September, Child wrote an essay for

      school wherein she stated that, while living in Florida, she was abused by

      Mother’s husband,1 and, as a result, she started cutting herself and making




      1
          It is not clear from the record when Mother was married.


      Court of Appeals of Indiana | Opinion 18A-DR-105 | August 22, 2018        Page 2 of 6
      suicidal comments. She also wrote that she was relieved to move back to

      Indiana and not have to worry about Mother’s husband.


[4]   On November 1, DCS received a report that Father was using

      methamphetamine. DCS investigated the claim, and Father admitted that the

      allegation was true. Child was removed from Father’s home and placed with

      his sister. The next day, Mother, who still had custody of Child according to

      the 2012 agreed entry that was approved by the Gibson Circuit Court, traveled

      from Florida to Indiana. She took custody of Child, and the pair returned to

      Florida.


[5]   On November 20, Father filed in the Gibson Circuit Court an emergency

      petition to modify custody and a petition to have Child returned to Indiana. He

      alleged that Child had resumed making threats of suicide and feared that if

      Child stayed in Florida she would either seriously hurt herself or commit

      suicide. The court ordered Mother to appear for a custody hearing on Monday,

      December 11 and to return Child to Indiana. Mother was served with a copy of

      the court’s orders and Father’s motion to modify custody on Wednesday,

      December 6 at 7:53 p.m. On Friday, December 8, Mother, proceeding pro se,

      filed a motion to continue the hearing. Mother provided several reasons for

      why she needed a continuance, including that her family was on a tight budget

      and that she could not take off from work. Mother further stated that she had

      recently undergone surgery and could not travel due to medical reasons. In

      support of her motion, she attached a letter from her doctor stating that she

      could not attend the December 11 hearing.

      Court of Appeals of Indiana | Opinion 18A-DR-105 | August 22, 2018       Page 3 of 6
[6]   The trial court denied Mother’s motion and held the custody hearing as

      scheduled on December 11. The court found “that the Mother should be

      defaulted” and then took “additional testimony from the Father.” Appellant’s

      Br. p. 15.2 That same day, the court issued its order and granted Father sole

      legal and primary physical custody of Child, who was thirteen.3 Four days

      later, Child was returned to Indiana.


[7]   Mother now appeals.



                                      Discussion and Decision
[8]   Father did not file an appellee’s brief. When the appellee fails to submit a brief,

      we will not develop an argument on his behalf but, instead, we may reverse the

      trial court’s judgment if the appellant’s brief presents a case of prima facie error.

      GEICO Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).


[9]   Mother contends that the trial court should have granted her motion to

      continue. Indiana Trial Rule 53.5 provides in part that a motion to continue

      “shall be allowed upon a showing of good cause established by affidavit or

      other evidence.” We review a trial court’s decision to grant or deny a motion to




      2
          The trial court’s order is attached to Mother’s brief on appeal. See Appellant’s Br. pp. 15-17.
      3
       The trial court also ordered that Father’s sister (“Aunt”) was “authorized to act as the Child’s legal
      custodian for the purposes of medical, schooling, and other legal decisions.” Appellant’s Br. p. 16. Child
      was also permitted to reside with Aunt should Father “be under the influence of any illegal substances.” Id.
      Because we conclude that the trial court abused its discretion in denying Mother’s motion to continue, we do
      not discuss the propriety of these provisions in the court’s order.

      Court of Appeals of Indiana | Opinion 18A-DR-105 | August 22, 2018                                    Page 4 of 6
       continue for an abuse of discretion. J.P. v. G.M., 14 N.E.3d 786, 789 (Ind. Ct.

       App. 2014). “An abuse of discretion may be found in the denial of a motion for

       a continuance when the moving party has shown good cause for granting the

       motion.” Rowlett v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d 615,

       619 (Ind. Ct. App. 2006), trans. denied.


[10]   Whether good cause existed is a fact-specific inquiry that requires us to review

       the circumstances at the time of the motion and the reasons presented to the

       trial court. Blackford v. Boone Cty. Area Plan Comm’n, 43 N.E.3d 655, 664 (Ind.

       Ct. App. 2015). Here, Mother, who was living in Florida, was served with a

       copy of Father’s motion to modify custody and the court’s order to appear less

       than five days before the custody-modification hearing was to take place. She

       promptly requested a continuance and stated multiple reasons for why she

       could not attend the hearing, including financial constraints, inability to take off

       work, and medical reasons. Attached to the motion was a letter from her

       doctor stating that Mother could not travel and would not be able to attend the

       December 11 hearing. Even if Mother was physically able to travel, she was

       given a very short amount of time to travel from Florida to Indiana. Not to

       mention, she had traveled to Indiana the month before to take custody of Child

       because Father was using methamphetamine. Regardless, Mother was

       physically unable to travel and attend the hearing because of medical reasons,

       and she supported her claim with a letter from her doctor. Mother showed

       good cause for a continuance.




       Court of Appeals of Indiana | Opinion 18A-DR-105 | August 22, 2018         Page 5 of 6
[11]   Despite Mother showing good cause for a continuance, the trial court denied

       the request and entered a default judgment against her for failing to appear.

       Generally, Indiana does not favor default judgments in custody proceedings

       “because of the grave importance of the matters decided therein.” Young v.

       Elkhart Cty. Office of Family & Children, 704 N.E.2d 1065, 1068 (Ind. Ct. App.

       1999). “[W]e do not see how the best interests of the children could be

       ascertained without a hearing that affords both parents the opportunity to

       present evidence and cross-examine witnesses . . . .” Walker v. Kelley, 819

       N.E.2d 832, 837 (Ind. Ct. App. 2004) (emphasis added). We stress that trial

       courts should be wary of finding a parent to be in default in a child-custody

       proceeding, because the trial court is always going to be able to make a better

       decision regarding the health, education, and welfare of children when both

       parents are heard.


[12]   We conclude that the trial court abused its discretion when it denied Mother’s

       motion to continue. We reverse the trial court’s order modifying custody and

       remand for further proceedings.


[13]   Reversed and remanded.


       Pyle, J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Opinion 18A-DR-105 | August 22, 2018        Page 6 of 6
