MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 10 2018, 7:57 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




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Christina Miller                                          Amy Noe Dudas
Andrew P. Martin                                          Richmond, Indiana
Kristin Valdivia
Sachs & Hess, PC
St. John, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                         July 10, 2018
E.M.S.,                                                   Court of Appeals Case No.
                                                          18A-JP-403
Angela Marie Goodson,                                     Appeal from the Wayne Circuit
Appellant-Respondent,                                     Court
                                                          The Honorable David A. Kolger,
        v.                                                Judge
                                                          Trial Court Cause No.
Jason Wyatt Schmittler,                                   89C01-1608-JP-112
Appellee-Petitioner.



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018                    Page 1 of 11
                                           Case Summary
[1]   Angela Goodson (“Mother”) and Jason Schmittler (“Father”) are the parents of

      E.M.S. (“the Child”). On January 19, 2018, the juvenile court awarded full

      legal and physical custody of the Child to Father. Mother challenges the

      custody determination on appeal, arguing that the juvenile court abused its

      discretion by excluding the testimony of certain character witnesses. We

      affirm.



                             Facts and Procedural History
[2]   Father and Mother began dating in February of 2014. They are the parents of

      the Child, who was born on December 24, 2014. Although they never lived

      together, after the Child’s birth, Mother and Father spent frequent time together

      with the Child. At some point, however, Mother’s and Father’s relationship

      failed.


[3]   On August 24, 2016, Father filed a petition to adjudicate paternity and for a

      determination regarding custody and child support. According to the terms of a

      provisional order entered by the juvenile court, Mother and Father began

      sharing provisional physical custody of the Child in February of 2017. The

      juvenile court conducted a two-day evidentiary hearing on Father’s petition on

      December 4, 2017 and January 18, 2018. At the beginning of the evidentiary

      hearing, Father’s counsel moved for a separation of witnesses. The juvenile




      Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018   Page 2 of 11
      court granted Father’s motion and instructed counsel “to advise their clients

      and witnesses accordingly.” Tr. Vol. II, p. 4.


[4]   During the cross-examination of Kim Syler, a witness for Mother, it came to

      the juvenile court’s attention that some of Mother’s witnesses had engaged in

      numerous conversations regarding the case while they waited together in a

      hallway outside the courtroom. Specifically, Syler indicated that she had

      overheard Mother’s parents discussing certain aspects of the case. The juvenile

      court decided “to bring [the witnesses] in one by one and find out if they’ve

      talked to each other about the case.” Tr. Vol. II, pp. 207–08. When asked

      “[h]ow many times, if any, was the case discussed … while [the witnesses] were

      waiting to testify,” Racine Kovach stated “I would say numerous. I can’t really

      put a number.” Tr. Vol. II, p. 209. Likewise, Sarah Otte testified that she

      participated in conversations regarding the case with Syler, Mother’s parents,

      Kovach, and John Minear.


[5]   After learning of these conversations, Father moved to strike the testimony of

      Minear and Syler and to preclude Otte, Mother’s parents, and Kovach from

      testifying. Finding that the conversations at issue violated the separation order,

      the juvenile court granted Father’s motion. Afterwards, the following exchange

      occurred:


              THE COURT: … The Court granted Father’s motion … and
              it’s my understanding, [Mother’s Counsel], I’m not trying to
              devalue or belittle what they were going to say, but they were -
              they were going to basically be character witnesses, is that
              correct?

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018   Page 3 of 11
              [MOTHER’S COUNSEL]: Character witnesses, also they
              would also have some - some testimony regarding … the
              relationship between the parties.


                                                       ****


              THE COURT: Okay.… I’m not really interested in hearing
              character witness testimony from people who were sitting out in
              the hall talking about character witness testimony all morning,
              but if one of them would say something that was directly, like,
              had witnessed a violent act or something like that and they were
              going to say something like that, that would be different in my
              mind, … if somebody was a witness to an act that’s a make or
              break type situation, I might want to hear that, but that’s not
              what I’m going to hear, is that a fair statement?


              [MOTHER’S COUNSEL]: I don’t - I don’t think that’s what
              you were going to hear, Your Honor.


      Tr. Vol. III, pp. 3–4.


[6]   At the close of Father’s evidence, Mother requested that the juvenile court

      reconsider its prior ruling as it applied to her parents. With regard to Mother’s

      request, the following exchange occurred:


              THE COURT: Okay. Father moved for the separation at the
              very beginning of the first day of this trial.… I advised both
              lawyers to advise their clients and their witnesses that there was a
              separation order in place so that they wouldn’t violate it and you
              didn’t do it, correct, [Mother’s Counsel]?


              [MOTHER’S COUNSEL]: I advised - I advised the parties –


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018   Page 4 of 11
                                                 ****


        THE COURT: And unfortunately for everybody they apparently
        didn’t heed your advice, correct?


        [MOTHER’S COUNSEL]: That’s what we heard.


        THE COURT: Well, we heard that they sat out there for hours
        and discussed their testimony - their upcoming testimony among
        themselves.


        [MOTHER’S COUNSEL]: Yes, Your Honor.


        THE COURT: Which was in clear violation of this Court’s
        order, that’s why I struck the testimony … and told you that you
        couldn’t call them. So I just want the record to reflect that …
        they clearly violated a court order so … why would I back up and
        let them testify now?


        [MOTHER’S COUNSEL]: Your Honor, the - the parents would
        … be testifying simply about what they witnessed during the
        course of this relationship when [Father] has testified that he was
        in their home, he spent time with them, so it - it - it would be
        entirely - entirely distinct from anything that any of those other
        witnesses would have had to discuss.


        THE COURT: So if they acknowledge on the stand that they
        discussed any of the things that they’re testifying about, I can
        strike that or - or if I feel like I can strike it all - you see where I’m
        coming from? I don’t know how you can make the statement
        you just made without … knowing what they’re going to say.
        [Father’s Counsel], what’s - what’s your position?



Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018     Page 5 of 11
        [FATHER’S COUNSEL]: Your Honor, we heard testimony
        from Kim Syler, who is a friend of Mother’s, and whose children
        have played with [the Child] and during her cross examination,
        she just threw out there that, you know, she had heard about
        something from [Mother’s] parents while she was sitting out in
        the hallway which started this whole conversation. She then
        acknowledged on the record that she was engaged in a long
        conversation with both [of Mother’s parents]. We then brought
        in Racine Kovach, who testified that they had all been seated
        together to include [Mother’s parents] and the question was
        specifically asked how many time[s], if any, was the case
        discussed among all of them while waiting to testify and the
        answer was numerous. And - and at that point, you struck a
        prior witness, Mr. Minear, who had been sitting with them, you
        struck Kim Syler’s testimony, you struck Racine Kovach, Sarah
        Otte and [Mother’s parents] and I don’t see how we can possibly
        know whether or not [Mother’s parents] will be truthful about
        whether or not they discussed X, Y or Z when they’re in here
        today and … I think the Court order meant what it meant and
        the order striking those witnesses should - should remain.


        THE COURT: Yeah. How do I put the [genie] back in the
        bottle, [Mother’s Counsel]? How do I know they’re not violating
        the order every time they speak?


        [MOTHER’S COUNSEL]: Your Honor, I - I don’t know that
        the Court can know that. Again, all I can - all I can proffer to the
        Court is that they would have unique knowledge of facts in this
        case that none of the other witnesses would have had and it
        would be a relatively short, limited examination.… I was not out
        there, so I don’t know what was discussed, Your Honor.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018   Page 6 of 11
      Tr. Vol. III, pp. 89–93. Following this exchange, the juvenile court rejected

      Mother’s request to amend its prior ruling. On January 19, 2018, the juvenile

      awarded full legal and physical custody of the Child to Father.



                                 Discussion and Decision
[7]   Mother contends that the trial court abused its discretion by striking the

      testimony of Syler and Minear and excluding the testimony of Otte, Kovach,

      and her parents. Indiana Evidence Rule 615 provides that “[a]t a party’s

      request, the court must order witnesses excluded so that they cannot hear other

      witnesses’ testimony.” “The primary purpose of a separation of witnesses order

      is to prevent them from gaining knowledge from the testimony of other

      witnesses and adjusting their testimony accordingly.” Roser v. Silvers, 698

      N.E.2d 860, 865 (Ind. Ct. App. 1998).


              The determination of the remedy for any violation of a
              separation order is wholly within the discretion of the trial court.
              Even when it is confronted with a clear violation, the trial court
              may choose to allow the violating witness to testify at trial. We
              will not disturb a trial court’s decision on such matters absent a
              showing of a clear abuse of discretion.


      Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995) (internal citations omitted). An

      abuse of discretion “occurs where the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before it, or when the court errs

      on a matter of law.” Cmty. Health Network v. Bails, 53 N.E.3d 450, 453 (Ind. Ct.

      App. 2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018   Page 7 of 11
[8]    In this case, the witnesses at issue, all of whom intended to provide testimony

       relating to Mother’s character, engaged in numerous discussions about the case,

       Mother’s character, and their future testimony while waiting together outside of

       the court room. In doing so, the witnesses disregarded the juvenile court’s

       instruction not to discuss anything relating to the testimony they planned to

       give with any other witness. Mother’s counsel indicated that he had informed

       each of the witnesses of the juvenile court’s order, leading one to assume that

       their violations were both knowing and deliberate.


[9]    We are unconvinced by Mother’s somewhat perplexing assertion that there was

       no violation of the juvenile court’s order because the conversations at issue

       were focused on the witnesses’ upcoming testimony rather than testimony they

       had already given before the court.1 The witnesses knew that they were going

       to be called to testify on Mother’s behalf and that they had been instructed not

       to discuss their testimony, future or previously given, with any other witness.

       Nevertheless, they chose to discuss their testimony and other matters relating to

       the case with each other while they waited to testify.


[10]   Further, to the extent that Mother claims that the juvenile court could not

       exclude the testimony at issue because she was not at fault for the violation, we

       disagree and note that Indiana Supreme Court precedent merely states that a




       1
         We are also unconvinced by Mother’s reliance on her claim that courts in Kentucky have allegedly adopted
       this view. Even if Mother’s characterization of the Kentucky case law is accurate, decisions made by courts
       in Kentucky are not binding on us.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018                   Page 8 of 11
       court may allow testimony when the party is not at fault, not that it must do so.

       See generally, Heck v. State, 552 N.E.2d 446, 452 (Ind. 1990) (providing that

       “[w]here there has been a violation of a separation order, the trial court, in the

       absence of connivance or collusion by the party calling the witness, may permit

       the witness to testify”). We are also unconvinced by Mother’s reliance on the

       Indiana Supreme Court’s decision in Jiosa v. State, 755 N.E.2d 605 (Ind. 2001)

       because the facts of Jiosa are easily distinguishable from the facts of the instant

       case. Unlike in the present case, the witness at issue in Jiosa was not at fault for

       the violation of the separation order. 755 N.E.2d at 607. The witness was in a

       place that she “had every right to be” when she inadvertently overheard a

       conversation between two individuals who had been observing the proceedings.

       Id. The witness did not seek out information or participate in any conversation

       about the trial. Id.


[11]   The witnesses at issue in this case knowingly and blatantly violated the

       separation order when they actively participated in numerous conversations

       about both the case and the testimony they planned to give. Given the record

       before us, we conclude that the violation of the juvenile court’s order strikes to

       the heart of the rule providing for the separation of witnesses as it not only

       allowed the witnesses to gain knowledge of the circumstances surrounding the

       case and the substance of the testimony of other witnesses, but also allowed the

       witnesses to adjust their testimony accordingly. As such, we cannot say that

       the juvenile court abused its discretion in excluding the testimony of the

       witnesses who participated in the violation of its order.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018   Page 9 of 11
[12]   The judgment of the juvenile court is affirmed.


       Kirsch, J., concurs.


       Baker, J, concurs with opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018   Page 10 of 11
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In the matter of the Paternity of                         Court of Appeals Case No.
                                                                 18A-JP-403
       E.M.S.,
       Angela Marie Goodson,
       Appellant-Respondent,

               v.

       Jason Wyatt Schmittler,
       Appellee-Petitioner.




       Baker, Judge, concurring.

[13]   I fully concur with the majority opinion. I write separately to note that Mother

       did not make an offer to prove regarding the content of the testimony of the

       character witnesses, had they been permitted to testify. Without knowing what

       the witnesses would have testified, we have no way of discerning whether their

       exclusion resulted in any prejudice to Mother. Therefore, even if we had found

       error, we would have deemed it to be harmless. I strongly encourage attorneys

       to make offers to prove in these situations.



       Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018          Page 11 of 11
