MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jul 14 2020, 8:44 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Auger                                         Robert A. Plantz
Franklin, Indiana                                        Aaron C. Lopez
                                                         Robert A. Plantz & Associates,
                                                         LLC
                                                         Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Marriage of:                        July 14, 2020

Joni Popejoy,                                            Court of Appeals Case No.
                                                         19A-DR-2887
Appellant-Petitioner,
                                                         Appeal from the
        v.                                               Pulaski Circuit Court
                                                         The Honorable
David Popejoy,                                           Mary C. Welker, Judge
                                                         Trial Court Cause No.
Appellee-Respondent.
                                                         66C01-1205-DR-29



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020                  Page 1 of 11
[1]   Joni Popejoy (“Mother”) appeals the trial court’s order modifying child

      custody, parenting time, and child support. She raises the following restated

      issues for our review:


              I.       Whether the trial court abused its discretion when it
                       modified child custody, parenting time, and child support
                       because Mother asserts that those issues were not raised to
                       the trial court; and


              II.      Whether the trial court abused its discretion when it
                       denied Mother’s motion for a continuance of the final
                       hearing.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Mother and David Popejoy (“Father”) were previously married and share three

      children from their marriage. Appellant’s App. Vol. II at 3, 4,7, 29. Mother and

      Father had joint custody of the children. Id. at 25. On June 1, 2018, Mother

      filed a Verified Motion for Contempt Regarding Parenting Time, alleging that

      Father was withholding parenting time from Mother and had failed to pay child

      support. Id. at 22-23. On that same date, Mother also filed a Rule to Show

      Cause and Application for Temporary Emergency Removal of Children From

      Their Current Place of Residence. Appellee’s App. Vol. 2 at 2-3. Paragraph three

      of that filing stated “[t]hat since the entry of this Court’s Order, there has been a

      change in circumstances so substantial and continuing so as to make the current

      child custody Order not in the best interest of said minor children.” Id. at 2. In


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 2 of 11
      paragraph five, Mother requested that the trial court “give [Mother] temporary

      emergency physical and legal custody of [the children].” Id. Mother further

      asked the trial court to “give [Mother] temporary emergency custody, both

      physical and legal, of the minor children, allowing [Mother] to remove the

      children from the County of Pulaski, Indiana and take them to the County of

      Hamilton, Indiana.” Id. at 3.


[4]   On June 4, 2018, Mother filed a Notice of Intent to Relocate and indicated that

      she would be moving from Pulaski County, Indiana to Noblesville, Indiana.

      Appellant’s App. Vol. II at 25. On June 20, 2018, Father filed his Objection to

      Relocation. Id. at 28. On July 6, 2018, a hearing was held on Mother’s Motion

      for Contempt, Mother’s Notice of Intent to Relocate, Mother’s Petition to

      Modify Custody, and Father’s Objection to Relocation. Id. at 29. After the

      hearing, the trial court issued an order on August 16, 2018, appointing a

      guardian ad litem to investigate the issues of custody and parenting time and

      approving the parties’ Temporary Agreement regarding parenting time. Id. at

      29-30.


[5]   On December 17, 2018, a telephonic pretrial conference was held, and the

      matter was set for a custody hearing on April 11, 2019. Id. at 12. On April 4,

      2019, Mother filed a Motion to Continue the April 11, 2019 custody hearing,

      specifically requesting that the trial court “continue this matter for a [c]ustody

      [h]earing on a time and date in which both parties and this Court can agree.”

      Id. at 33. The trial court set the matter for a telephonic pretrial conference on

      April 5, 2019, and at that hearing, Mother’s Motion to Continue was denied

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 3 of 11
      and Mother’s counsel notified the trial court that he would be filing a Motion to

      Withdraw. Id. at 14. On that same date, counsel for Mother filed his Motion

      to Withdraw, and the motion was granted by the trial court on April 8, 2019.

      Id. at 34, 35.


[6]   On April 11, 2019, the parties appeared for the custody hearing. Tr. Vol. 2 at

      16-17. At the beginning of the hearing, Mother, who was representing herself,

      requested a continuance to “seek legal counsel” because she claimed she was

      unaware of the law and felt like she needed an attorney to proceed. Id. at 17.

      After some argument from the parties, the trial court denied Mother’s request

      for a continuance, maintaining that she had already gone through three

      attorneys and that the reason her attorney was forced to withdraw was because

      of Mother’s own actions and specifically stating that “based on the information

      I have, the reason for the loss of an attorney is of your own doing, ma’am.” Id.

      at 39. The trial court also determined that if it continued the hearing, there

      would be no time available until August 2019, and the trial court did not believe

      that it would be fair for the children to wait that long for a resolution. Id.


[7]   During the hearing, evidence was heard concerning the issues of custody,

      parenting time, and child support. At no time did Mother object to litigating

      these issues or claim that she had not received notice that these issues would be

      addressed at the hearing. Id. at 16-141. At the conclusion of the hearing, the

      trial court took the issues of permanent custody, parenting time, and child

      support under advisement. Appellant’s App. Vol. II at 38. On November 12,

      2019, the trial court issued its order, awarding custody of the three children to

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 4 of 11
      Father, ordering parenting time in accordance with the Indiana Parenting Time

      Guidelines, and child support in accordance with the attached Child Support

      Worksheet. Id. at 18-21. Mother now appeals.


                                     Discussion and Decision

                                             I.      Modification
[8]   “We review custody modifications for an abuse of discretion ‘with a preference

      for granting latitude and deference to our trial judges in family law matters.’”

      Hecht v. Hecht, 142 N.E.3d 1022, 1028 (Ind. Ct. App. 2020) (quoting Werner v.

      Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied). We also

      review a trial court’s decision to modify child support and parenting time only

      for an abuse of discretion. Moell v. Moell, 84 N.E.3d 741, 744-45 (Ind. Ct. App.

      2017); Hooker v. Hooker, 15 N.E.3d 1103, 1105 (Ind. Ct. App. 2014). This is

      because it is the trial court that observes the parties’ conduct and demeanor and

      hears their testimony firsthand. Hecht, 142 N.E.3d at 1029. We will not

      reweigh the evidence or judge the credibility of the witnesses. Id. Rather, we

      will reverse the trial court’s custody determination only if the decision is

      “clearly against the logic and effect of the facts and circumstances or the

      reasonable inferences drawn therefrom.” Id.


[9]   Mother argues that the trial court abused its discretion when it issued its order

      modifying child custody, parenting time, and child support. She asserts that

      these modifications were in error because neither party raised these

      modification issues before the trial court. She contends that neither her Notice


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 5 of 11
       of Intent to Relocate nor Father’s Objection to Relocation expressed any

       request to modify custody or parenting time, and therefore, the trial court’s

       modifications of custody, parenting time, and child support were erroneous as a

       matter of law.


[10]   In this case, the underlying issue is Mother’s intent to relocate. When a parent

       intends to relocate, that parent must file a specific notice with the trial court that

       issued the original custody and parenting time order and serve notice to the

       non-relocating parent. Ind. Code § 31-17-2.2-1(a); Ind. Code § 31-17-2.2-3.

       The nonrelocating parent must then file a response either consenting to the

       relocation or objecting to the relocation. Ind. Code § 31-17-2.2-5. The trial

       court may grant a temporary order restraining the relocation of the children

       until the matter can be presented at a final hearing. Ind. Code § 31-17-2.2-6.


[11]   Here, on June 1, 2018, Mother filed her Rule to Show Cause and Application

       for Temporary Emergency Removal of Children From Their Current Place of

       Residence. Appellee’s App. Vol. 2 at 2-3. Paragraph three of this pleading stated

       “[t]hat since the entry of this Court’s Order, there has been a change in

       circumstances so substantial and continuing so as to make the current child

       custody Order not in the best interest of said minor children.” Id. at 2.

       Paragraph five requested that the trial court “give [Mother] temporary

       emergency physical and legal custody of [the children].” Id. Mother further

       requested the trial court to “give [Mother] temporary emergency custody, both

       physical and legal, of the minor children, allowing [Mother] to remove the

       children from the County of Pulaski, Indiana and take them to the County of

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 6 of 11
       Hamilton, Indiana.” Id. at 3. Therefore, from this pleading, it is clear that

       Mother was seeking an award of full custody to herself so that she could

       relocate with the children to Hamilton County, which is a substantial distance

       away from Pulaski County.


[12]   On July 6, 2018, a hearing was held on Mother’s Motion for Contempt,

       Mother’s Notice of Intent to Relocate, Mother’s Petition to Modify Custody,

       and Father’s Objection to Relocation. Appellant’s App. Vol. II at 29. After the

       hearing, the trial court issued an order on August 16, 2018, appointing a

       guardian ad litem to investigate the issues of custody and parenting time, and

       approving the parties’ Temporary Agreement regarding parenting time. Id. at

       29-30. On December 17, 2018, a telephonic pretrial conference was held, and

       the matter was set for a custody hearing on April 11, 2019. Id. at 12. On April

       4, 2019, Mother, filed a Motion to Continue the April 11 custody hearing,

       specifically requesting that the trial court “continue this matter for a [c]ustody

       [h]earing on a time and date in which both parties and this Court can agree.”

       Id. at 33. The trial court set the matter for a telephonic pretrial conference on

       April 5, 2019, and at that hearing, Mother’s Motion to Continue was denied

       and Mother’s counsel notified the trial court that he would be filing a Motion to

       Withdraw. Id. at 14. The matter then proceeded to the custody hearing on

       April 11, 2019, where Mother appeared without representation and did not

       object to the issue of custody being litigated at that hearing.


[13]   From our review of the record, it is clear that Mother raised the issue of custody

       modification in her June 1, 2018 pleading and that she was aware that custody

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 7 of 11
       was at issue in light of the facts that, in August 2018, a guardian ad litem was

       ordered to be appointed to investigate the issues of custody and parenting time

       and that, on December 17, 2018, the matter was set for a custody hearing to be

       held on April 11, 2019. Based on the foregoing, it is clear that Mother was on

       notice that the matter was set for a custody hearing on April 11, 2019, and that

       the issue of custody would be litigated at that hearing, particularly in light of the

       fact that she had raised the issue in her June 1, 2018 pleading. At no time prior

       to this appeal did Mother object to custody being at issue or to the trial court

       issuing an order on the modification issues after a final custody hearing. We,

       therefore, conclude that Mother was aware that custody was at issue in the

       proceedings in this matter and cannot now object to the issue being resolved by

       the trial court. The trial court did not abuse its discretion when it modified

       child custody, parenting time, and child support.


                                              II.      Continuance
[14]   The decision to grant or deny a motion for a continuance is within the sound

       discretion of the trial court, and we will reverse the trial court only for an abuse

       of that discretion. Smith v. Smith, 136 N.E.3d 656, 658 (Ind. Ct. App. 2019).

       “An abuse of discretion may be found on the denial of a motion for a

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

       motion.” Id. at 658-59. An abuse of discretion will be found when a trial court

       reaches a conclusion which is clearly against the logic and effect of the facts or

       the reasonable and probable deductions which may be drawn therefrom. Id. at



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 8 of 11
       659. No abuse of discretion will be found when the moving party has not

       shown that she was prejudiced by the denial. Id.


[15]   Mother contends that the trial court abused its discretion when it denied her

       motion to continue the custody hearing to give her time to obtain counsel. She

       argues that, in denying her request, the trial court deprived her of counsel at a

       crucial stage of the proceedings, which was prejudicial to her. Mother further

       asserts that it was an abuse of discretion for the trial court to deny her request

       because a continuance would not have been prejudicial to Father as nothing in

       the parties’ circumstances would have changed, and Father would have

       maintained temporary custody of the children pending a new hearing date.


[16]   On April 5, 2019, counsel for Mother filed his Motion to Withdraw, and the

       motion was granted by the trial court on April 8, 2019. Appellant’s App. Vol. II

       at 34, 35. On April 11, 2019, at the beginning of the custody hearing, Mother,

       who was representing herself, requested a continuance to “seek legal counsel”

       because she claimed she was unaware of the law and felt like she needed an

       attorney to proceed. Tr. Vol. 2 at 17. After argument from the parties, the trial

       court denied Mother’s request for a continuance, maintaining that Mother had

       already gone through three attorneys and that the reason her last attorney was

       forced to withdraw was because of Mother’s own actions, specifically stating

       that “based on the information I have, the reason for the loss of an attorney is

       of your own doing, ma’am.” Id. at 39. The trial court further determined that

       if it continued the hearing, there would be no time available for a hearing until



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 9 of 11
       August 2019, and the trial court did not believe that it would be fair for the

       children to wait that long for a resolution of the issues. Id.


[17]   The withdrawal of counsel does not entitle a party to an automatic

       continuance. Hamilton v. State, 864 N.E.2d 1104, 1109 (Ind. Ct. App. 2007)

       (citing Danner v. Danner, 573 N.E.2d 934, 937 (Ind. Ct. App. 1991), trans.

       denied). The party seeking a continuance must show that he or she is free from

       fault. In re B.H., 44 N.E.3d 745, 748 (Ind. Ct. App. 2015) (citing Danner, 573

       N.E.2d at 937), trans. denied.


[18]   Here, Mother cannot show that she is free from fault. In fact, the fault for

       Mother’s attorney withdrawing and leaving her without representation on the

       date of the custody hearing resulted from Mother’s own conduct. In denying

       Mother’s request for a continuance, the trial court found that Mother had

       already had three attorneys over the course of the proceedings. Tr. Vol. 2 at 39.

       Further, the trial court stated, “based on the information I have, the reason for

       the loss of an attorney is of your own doing, ma’am.” Id. When advising the

       trial court that he planned to withdraw, Mother’s attorney had indicated that,

       as a matter of ethics, he was forced to withdraw due to misrepresentations

       made to him by Mother. Id. at 19. Mother was thus attempting to seek a

       continuance to obtain a new attorney when it was through her own fault that

       her prior attorney had withdrawn. Although Mother alleges that she was

       prejudiced by the denial of her request for a continuance, she cannot show that

       she was free from fault for the withdrawal of her counsel, which was what



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 10 of 11
       necessitated her request. We conclude that the trial court did not abuse its

       discretion in denying Mother’s request for a continuance.


[19]   Further, the issues of custody, parenting time, and child support had been

       pending since June 2018 when Mother filed her Notice of Intent to Relocate

       and associated pleadings requesting modification. Therefore, at the time of the

       custody hearing on April 11, 2019, the matters had been pending for close to

       one year. The trial court advised the parties that if a continuance was granted,

       the hearing would have to be postponed until August 2019, which would be

       fourteen months after the original pleadings were filed. Tr. Vol. 2 at 39. Thus,

       it was in the best interest of the parties and particularly the children to conduct

       the custody hearing in April to ensure that the matters could be resolved sooner

       as opposed to having a custody hearing in August, the same month that school

       was set to begin for the children, especially if the trial court had determined that

       the children could relocate with Mother. Based on this, we cannot conclude

       that the trial court’s decision to deny Mother’s request for a continuance was

       clearly against the logic and effect of the facts or the reasonable and probable

       deductions which may be drawn therefrom. See Smith, 136 N.E.3d at 658.

       Therefore, the trial court did not abuse its discretion.


[20]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020   Page 11 of 11
