                                                                                      FILED
                                                                                  Aug 08 2018, 8:31 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      APPELLANT PRO SE                                           ATTORNEY FOR APPELLEE
      Jessica D. Grimes                                          Robert D. Haas
      Indianapolis, Indiana                                      Blankenship & Haas
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jessica D. Grimes,                                        August 8, 2018

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                49A02-1711-MI-2695
              v.                                                Appeal from the Marion Superior
                                                                Court
      Tia L. Houser,                                            The Honorable Timothy W. Oakes,
      Appellee-Respondent.                                      Judge

                                                                Trial Court Cause No.
                                                                49D02-1708-MI-33590



      Shepard, Senior Judge.

[1]   While the mother and father of a child were engaged in ongoing litigation about

      visitation in the court where they had been divorced, the father’s new wife filed

      a separate petition regarding visitation in a different court.


[2]   The second court dismissed the new wife’s petition on grounds that the original

      dissolution court had exclusive and continuing jurisdiction. It awarded

      attorney’s fees to the child’s mother.

      Court of Appeals of Indiana | Opinion 49A02-1711-MI-2695 | August 8, 2018                           Page 1 of 5
[3]   The trial court was right on both counts. We affirm.


[4]   Tia and Aaron Grimes had a child, S.G. They divorced in 2011, via a decree

      issued by Marion Superior Court 1 in Cause Number 49D01-0810-DR-49581.

      The court awarded Tia, now Tia Houser, sole legal and physical custody of

      S.G. but granted Aaron parenting time.


[5]   Aaron married Jessica Grimes (“Mrs. Grimes”), who became S.G.’s

      stepmother. Houser and Aaron disagreed about parenting time over the years,

      and their disagreements were submitted to Marion Superior Court 1. On July

      28, 2017, Aaron moved to dismiss the case due to alleged inactivity. Houser

      objected, asserting that the parties had continuing disputes and that Aaron had

      failed to respond to discovery requests. The court denied Aaron’s motion on

      August 14, 2017.


[6]   On August 31st, Mrs. Grimes filed a petition for visitation in Marion Superior

      Court 2, claiming Houser had blocked her from seeing S.G. since April 2016.

      Houser filed a motion to dismiss and a request for attorney’s fees, asserting

      Marion Superior Court 1 had exclusive, continuing jurisdiction over parenting

      time issues. On October 26, 2017, Marion Superior Court 2 granted Houser’s

      motion without a hearing, dismissing the case and ordering Grimes to pay

      Houser $875 in attorney’s fees.


[7]   Grimes argues the court should not have dismissed her petition. The standard

      of review for dismissal pursuant to Trial Rule 12(B)(1) is a function of what

      occurred in the trial court. Bellows v. Bd. of Comm’rs of Cty. of Elkhart, 926

      Court of Appeals of Indiana | Opinion 49A02-1711-MI-2695 | August 8, 2018    Page 2 of 5
      N.E.2d 96 (Ind. Ct. App. 2010). If the facts are disputed but the court rules on

      a paper record, the standard of review for dismissal due to lack of jurisdiction is

      de novo. Johnson v. Patriotic Fireworks, Inc., 871 N.E.2d 989 (Ind. Ct. App.

      2007).


[8]   Indiana Code section 31-21-5-2 (2007) grants exclusive, continuing jurisdiction

      over child custody issues to the court that issued the original child custody

      determination. That statute was in play in State ex rel. Meade v. Marshall Super.

      Ct. II, 644 N.E.2d 87 (Ind. 1994), when a stepmother filed a petition seeking to

      bar a mother’s visitation even though the father and mother’s custody dispute

      was pending in a different court. The Indiana Supreme Court noted the

      interests of children require “stability and continuity” in the legal process, and

      efforts to avoid the usual procedures through collateral attack are prohibited.

      Id. at 89. The Supreme Court ordered the trial court to dismiss stepmother’s

      petition due to lack of jurisdiction. See also Matter of Lemond, 274 Ind. 505, 413

      N.E.2d 228 (1980) (holding trial judges and attorneys in contempt for

      attempting to circumvent a Court of Appeals decision in a custody dispute by

      pursuing a CHINS petition involving the child at issue in the custody dispute).


[9]   Mrs. Grimes says she was not a party to Aaron and Houser’s ongoing litigation

      in Marion Superior Court 1, but that issue has no more bearing on jurisdiction

      than it did in the Meade case. Superior Court 1 issued the dissolution decree

      addressing custody and parenting time and had continuing jurisdiction over

      parenting time issues. Superior Court 2 properly dismissed Grimes’ petition for

      visitation.

      Court of Appeals of Indiana | Opinion 49A02-1711-MI-2695 | August 8, 2018   Page 3 of 5
[10]   Next, Grimes argues Marion Superior Court 2 should not have awarded

       attorney’s fees to Houser. We review the trial court’s decision to award

       attorney’s fees for an abuse of discretion. Goodrich Quality Theaters, Inc. v.

       Fostcorp Heating and Cooling, Inc., 39 N.E.3d 660 (Ind. 2015).


[11]   Indiana Code section 34-52-1-1 (1998) authorizes a trial court to award

       attorney’s fees as part of the cost to the prevailing party if the court finds that

       either party:


               (1) brought the action or defense on a claim or defense that is
               frivolous, unreasonable, or groundless;
               (2) continued to litigate the action or defense after the party’s
               claim or defense clearly became frivolous, unreasonable, or
               groundless; or
               (3) litigated the action in bad faith.

[12]   We have previously stated:


               A claim is “frivolous” if it is made primarily to harass or
               maliciously injure another; if counsel is unable to make a good
               faith and rational argument on the merits of the action; or if
               counsel is unable to support the action by a good faith and
               rational argument for extension, modification, or reversal of
               existing law. A claim is “unreasonable” if, based upon the
               totality of the circumstances, including the law and facts known
               at the time, no reasonable attorney would consider the claim
               justified or worthy of litigation. A claim is “groundless” if no
               facts exist which support the claim relied upon by the losing
               party.
[13]   America’s Directories, Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059, 1070-

       71 (Ind. Ct. App. 2005) (citations omitted), trans. denied.


       Court of Appeals of Indiana | Opinion 49A02-1711-MI-2695 | August 8, 2018    Page 4 of 5
[14]   Mrs. Grimes filed her petition for visitation in Superior Court 2 shortly after

       Superior Court 1 denied Aaron’s request to dismiss. Based on precedent

       establishing that Superior Court 1 had jurisdiction over parenting time, no

       reasonable attorney would have considered Grimes’ petition to be justified or

       worthy of litigation in Superior Court 2.


[15]   To the contrary, the petition appears to have been an attempt to circumvent

       Marion Superior Court 1 while imposing additional expenses on Houser. See

       Clary-Ghosh v. Ghosh, 26 N.E.3d 986 (Ind. Ct. App. 2015) (affirming award of

       attorney’s fees to father; wife’s contempt petition was frivolous and

       unnecessarily litigious), trans. denied. Marion Superior Court 2 properly

       awarded attorney’s fees to Houser.


[16]   For the reasons stated above, we affirm the judgment of the trial court.


[17]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1711-MI-2695 | August 8, 2018   Page 5 of 5
