MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Oct 14 2015, 8:38 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        APPELLEE PRO SE
Ulrich Tibaut Houzanme                                  Sally Houzanme
Indianapolis, Indiana                                   Tell City, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ulrich Tibaut Houzanme,                                 October 14, 2015
Appellant-Respondent,                                   Court of Appeals Cause No.
                                                        49A04-1505-DR-434
        v.                                              Appeal from the Marion Superior
                                                        Court
Sally Jo Houzanme,                                      The Honorable James A. Joven,
Appellee-Petitioner.                                    Judge
                                                        The Honorable Kimberly Dean
                                                        Mattingly, Magistrate
                                                        Trial Court Cause No.
                                                        49D13-0605-DR-19580



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015    Page 1 of 5
                                                Case Summary
[1]   Ulrich Tibaut Houzanme appeals the trial court’s denial of his motion for

      modification of child custody and support. We affirm.


                                                         Issue
[2]   Ulrich raises two issues, which we consolidate and restate as whether the trial

      court had jurisdiction to hear his motion for modification.


                                                         Facts
[3]   Sally Houzanme and Ulrich’s marriage was dissolved in 2007, and Sally was

      granted legal and physical custody of their child. Sally later filed a petition for

      modification, which the trial court granted. Ulrich appealed the trial court’s

      modification of his parenting time and child support. On appeal, we held that

      we were unable to appropriately review the order because it lacked explanation

      for deviations. Houzanme v. Houzanme, No. 49A02-0802-CV-131, slip op. p. 5

      (Ind. Ct. App. Nov. 14, 2008). We remanded to the trial court for a more

      specific order. Id. at 6. Following our order, Judge Patrick McCarty of Marion

      Superior Court, Civil Division 3, entered an order in compliance with our

      instruction.1 Judge McCarty then recused, and Judge S.K. Reid of Marion

      Superior Court, Civil Division 13, was appointed as special judge. In 2013,

      Judge James Joven replaced Judge Reid in Civil Division 13.




      1
          We were not provided with this order in the Appellant’s Appendix.


      Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015   Page 2 of 5
[4]   In September 2014, Sally filed a motion to determine the amount of child

      support arrearage. In October 2014, Ulrich filed petitions for contempt against

      Sally and a motion to modify. A hearing was held in October 2014 before

      Magistrate Caryl Dill. At the hearing, Ulrich requested a continuance so that

      he could obtain an attorney, and Magistrate Dill granted the request. Ulrich

      was also ordered to reimburse Sally’s travel expenses and lost wages.


[5]   In January 2015, the parties reached an agreed entry on parenting time. The

      earlier hearing was continued several times, and in March 2015, Ulrich filed a

      motion to modify child custody and support. A hearing was held on April 9,

      2015, before Magistrate Kimberly Mattingly. Ulrich was represented by

      counsel at the hearing and did not raise any issue regarding Magistrate

      Mattingly presiding over the matter. On April 28, 2015, Judge Joven and

      Magistrate Mattingly signed an order that, among other things, denied the

      request to modify legal custody and modified child support. Ulrich now

      appeals.


                                                  Analysis
[6]   Ulrich argues that Magistrate Mattingly did not have jurisdiction to hear his

      petition for modification. According to Ulrich, under Indiana Trial Rule 79

      and Asher v. Coomler, 994 N.E.2d 1283 (Ind. Ct. App. 2013), only the special

      judge, now Judge Joven, could preside over the matter. In Asher, we held that

      the magistrate improperly presided over a hearing instead of the special judge

      over a party’s objection. Asher, 994 N.E.2d at 1286-87. Ulrich argues that his

      due process rights were violated by Magistrate Mattingly presiding over the case
      Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015   Page 3 of 5
      instead of Judge Joven. He asks that we reverse the order and remand for a

      new hearing.2


[7]   Sally responds that Ulrich’s argument is waived because he did not raise it to

      the trial court.3 In support of her argument, Sally relies upon Floyd v. State, 650

      N.E.2d 28 (Ind. 1994). In Floyd, our supreme court held: “The proper inquiry

      for a reviewing court when faced with a challenge to the authority and

      jurisdiction of a court officer to enter a final appealable order is first to ascertain

      whether the challenge was properly made in the trial court so as to preserve the

      issue for appeal.” Floyd, 650 N.E.2d at 32. “[I]t has been the long-standing

      policy of this court to view the authority of the officer appointed to try a case

      not as affecting the jurisdiction of the court.” Id. “Therefore, the failure of a

      party to object at trial to the authority of a court officer to enter a final

      appealable order waives the issue for appeal.” Id. More recently, our supreme

      court held that a post-conviction petitioner had waived his claim that a

      magistrate who issued several orders in his case lacked authority over his post-

      conviction proceedings because a special judge had been assigned to hear the




      2
        Ulrich also seems to argue that Magistrate Mattingly erred with respect to the health insurance premiums,
      lost wages and travel expenses, and legal custody. However, Ulrich cites nothing in the record and cites no
      standard of review or authority. These contentions are waived for failure to make cogent argument. See Ind.
      Appellate Rule 46(A)(8)(a).
      3
        In his reply brief, Ulrich argues that we should not consider the Appellee’s Brief because it was untimely.
      However, Sally filed a motion to file the belated brief, which this court granted. Ulrich also argues that Sally
      failed to serve him with her Appellee’s Brief and that this court failed to serve him with its order granting
      Sally’s request to file a belated brief. However, Sally’s brief includes a certificate of service indicating that she
      served Ulrich with her brief. Ulrich does not dispute that he obtained Sally’s Appellee’s Brief and filed a
      timely Reply Brief or that he suffered any prejudice. Consequently, we will consider Sally’s arguments.

      Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015                     Page 4 of 5
       case. Tapia v. State, 753 N.E.2d 581, 588 (Ind. 2001). The post-conviction

       petitioner waived any claims in regards to the magistrate’s authority because he

       failed to object. Id.; see also City of Indianapolis v. Hicks, 932 N.E.2d 227, 231

       (Ind. Ct. App. 2010) (“Our supreme court has long held that defects in the

       authority of a court officer, as opposed to the jurisdiction of the trial court itself,

       to enter a final order will be waived if not raised through a timely objection.”),

       trans. denied.


[8]    We agree with Sally. Unlike in Asher, Ulrich did not timely object to Magistrate

       Mattingly presiding over the hearing. Consequently, he waived any claim

       regarding the magistrate’s authority.4


                                                   Conclusion
[9]    Ulrich waived any claim regarding Magistrate Mattingly presiding over the

       matter. We affirm.


[10]   Affirmed.


       Kirsch, J., and Najam, J., concur.




       4
        Ulrich also argues that Magistrate Dill was not authorized to hear the matter in October 2014, but he did
       not timely object to Magistrate Dill presiding over that hearing either.

       Court of Appeals of Indiana | Memorandum Decision|49A04-1505-DR-434 October 14, 2015              Page 5 of 5
